Tasmania: Evidence Act 2001 (Tas)

Evidence Act 2001 An Act to provide for matters relating to evidence [Royal Assent 17 December 2001] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: Chapter 1 - Preliminary PART 1 - Formal matters 1. Short title This Act may be cited as the Evidence Act 2001 . 2. Commencement This Act commences on a day to be proclaimed. 2A. Numbering of Act (1) In order to maintain consistent numbering between this Act and the Evidence Act 1995 of the Commonwealth – (a) if the Commonwealth Act contains a section that is not in this Act, that section number and heading are included in this Act despite the omission of the body of the section; and (b) if this Act contains a section that is not in the Commonwealth Act, that section is numbered so as to maintain consistency in numbering between sections common to both Acts. (2) A section number and heading referred to in subsection (1)(a) form part of this Act. Note 1: A note appears under each heading of a kind referred to in subsection (1)(a) describing the omitted section of the Commonwealth Act. Note 2: A note appears under each section of a kind referred to in subsection (1)(b) highlighting the non-appearance of an equivalent section in the Commonwealth Act. Note 3: This section does not appear in the Commonwealth Act. 3. Interpretation (1) In this Act – admission means a previous representation that is – (a) made by a person who is or becomes a party to a proceeding, including a defendant in a criminal proceeding; and (b) adverse to the person's interest in the outcome of the proceeding; analysis includes examination, testing, handling and storage done by, or under the supervision or direction of, an analyst; analyst means – (a) the Government Analyst; or (b) an analyst appointed for the purposes of any Act of the Commonwealth, of a State or Territory of the Commonwealth or of any other jurisdiction; or (c) a person appointed, authorised or otherwise determined for the purposes of such Act to perform an analysis; or (d) any other person who has the appropriate qualifications or experience to perform an analysis; associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for – (a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or (b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted; Australia includes the external Territories; Australian court means – (a) the High Court; or (b) a court exercising federal jurisdiction; or (c) a court of a State or Territory; or (d) a judge, justice or arbitrator under an Australian law; or (e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or (f) a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence; Australian law means a law of the Commonwealth or a State or Territory of the Commonwealth; Australian lawyer has the meaning it has in the Legal Profession Act 2007 ; Australian legal practitioner has the meaning it has in the Legal Profession Act 2007 ; Australian or overseas proceedings means a proceeding (however described) in an Australian court or a foreign court; Australian Parliament means Parliament of the Commonwealth or another State or the Legislative Assembly of a Territory; Australian practising certificate has the meaning it has in the Legal Profession Act 2007 ; Australian-registered foreign lawyer has the meaning it has in the Legal Profession Act 2007 ; Australian Statistician means the Australian Statistician referred to in section 5(2) of the Australian Bureau of Statistics Act 1975 of the Commonwealth and includes any person to whom the powers of the Australian Statistician under section 12 of the Census and Statistics Act 1905 of the Commonwealth have been delegated; business means a business referred to in section 3A ; case of a party means the facts in issue in respect of which the party bears the legal burden of proof; child means a child of any age and includes the meaning given in subsection (13) ; civil penalty means civil penalty referred to in subsection (6) ; civil proceeding means a proceeding other than a criminal proceeding; coincidence evidence means evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection; coincidence rule means the rule referred to in section 98 ; Commonwealth-owned body corporate means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Law, be – (a) a wholly-owned subsidiary of the Commonwealth; or (b) a wholly-owned subsidiary of another body corporate that is under this definition a Commonwealth-owned body corporate because of the application of paragraph (a) , including the application of that paragraph together with another application or other applications of this paragraph; Commonwealth record means a record made by – (a) a Department within the meaning of the Public Service Act 1999 of the Commonwealth; or (b) the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or (c) a person or body, other than a Legislative Assembly, holding office or exercising power under or because of the Commonwealth Constitution or a law of the Commonwealth for the purpose of exercising that power; or (d) a body or organisation, other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose – (i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or (ii) by the Governor-General; or (iii) by a Minister of the Commonwealth; or (e) any other body or organisation that is a Commonwealth-owned body corporate – and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a) , (b) , (c) , (d) or (e) but does not include a record made by a person or body holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned; counselling communication means a counselling communication referred to in section 127B(1) ; court means a Tasmanian court; credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person's ability to observe or remember facts and events about which the person made the representation; credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give, evidence; credibility evidence is defined in section 101A ; credibility rule means the rule referred to in section 102 ; criminal proceeding means a prosecution for an offence and includes – (a) a proceeding for the committal of a person for trial or sentence for an offence; and (b) a proceeding relating to bail – but does not include a prosecution that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 of the Commonwealth; cross-examination means cross-examination referred to in subsection (3) ; cross-examiner means a party who is cross-examining a witness; document means any record of information and includes – (a) anything on which there is writing; or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or (d) any map, plan, drawing or photograph; electronic communication has the meaning it has in the Electronic Transactions Act 2000 ; examination in chief means examination in chief referred to in subsection (2) ; exercise of a function includes performance of a duty; fax, in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy; foreign court means any court, including any person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body is empowered to require the answering of questions or the production of documents, of a foreign country or a part of such a country; function includes power, authority or duty; Governor of a State includes any person for the time being administering the Government of the State; Governor-General means the Governor-General of the Commonwealth and includes any person for the time being administering the Government of the Commonwealth; hearsay rule means the rule referred to in section 59 ; identification evidence means evidence that is – (a) an assertion by a person to the effect that a defendant was, or resembles, visually, aurally or otherwise, a person who was, present at or near a place where – (i) the offence for which the defendant is being prosecuted was committed; or (ii) an act connected to that offence was done – at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or (b) a report, whether oral or in writing, of such an assertion; investigating official means – (a) a police officer, other than a police officer who is engaged in covert investigations under the orders of a superior; or (b) a person appointed by or under an Australian law, other than a person who is engaged in covert investigations under the orders of a superior and whose functions include the prevention or investigation of offences; joint sitting means – (a) in relation to the Parliament of the Commonwealth, a joint sitting of the members of the Senate and of the House of Representatives convened by the Governor-General under section 57 of the Commonwealth Constitution or under any other Act of the Commonwealth; or (b) in relation to a bicameral legislature of a State, a joint sitting of both Houses of the legislature convened under a law of the State; judge, in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held; law means a law referred to in subsection (11) ; leading question means a question asked of a witness that – (a) directly or indirectly suggests a particular answer to the question; or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked; legal counsel means an Australian lawyer employed in or by a government agency or other body who by law is exempted from holding an Australian practising certificate, or who does not require an Australian practising certificate, to engage in legal practice in the course of that employment; Legislative Assembly means – (a) any present or former Legislative Assembly of a Territory; and (b) the Australian Capital Territory House of Assembly; member of the Australian Federal Police includes a special member or a staff member of the Australian Federal Police; offence means an offence against or arising under an Australian law; official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence; opinion rule means the rule referred to in section 76 ; overseas-registered foreign lawyer has the meaning it has in Part 2.6 of Chapter 2 of the Legal Profession Act 2007 ; parent includes a parent referred to in subsection (14) ; police officer means – (a) a member of the Australian Federal Police; or (b) a member of the police force of a State or Territory of the Commonwealth; postal article means a postal article as defined in the Australian Postal Corporation Act 1989 of the Commonwealth; previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced; prior consistent statement of a witness means a previous representation that is consistent with evidence given by the witness; prior inconsistent statement of a witness means a previous representation of the witness that is inconsistent with evidence given by the witness; probative value means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue; prosecutor means a person who institutes or is responsible for the conduct of a prosecution; public document means a document that – (a) forms part of the records of the Crown in any of its capacities; or (b) forms part of the records of the government of a foreign country; or (c) forms part of the records of a person or body holding office or exercising a function under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country; or (d) is being kept by or on behalf of the Crown, such a government or such a person or body – and includes the records of the proceedings of, and papers presented to – (e) an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; and (f) a legislature of a foreign country, including a House or committee, however described, of such a legislature; re-examination means re-examination referred to in subsection (4) ; representation includes – (a) an express or implied representation, whether oral or in writing; and (b) a representation to be inferred from conduct; and (c) a representation not intended by its maker to be communicated to or seen by another person; and (d) a representation that for any reason is not communicated; seal includes a stamp; serious offence means – (a) in the case of a defendant of or over the age of 18 years, an indictable offence that cannot be dealt with summarily without the consent of the defendant; and (b) in the case of a defendant under the age of 18 years, any indictable offence for which the defendant has been detained; sexual offence means – (a) a crime under section 122 , 124 , 124A , 124B , 124C , 125 , 125A , 125B , 126 , 127 , 127A , 128 , 129 , 133 or 185 of the Criminal Code; or (b) a crime under section 298, 299 or 300 of the Criminal Code in relation to a crime specified in a section referred to in paragraph (a) ; or (c) an offence under section 35(3) of the Police Offences Act 1935 ; spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003 , with that person; surrogate child, in relation to another person, means a person – (a) who is a child of the other person by virtue of the operation of section 26(1) of the Surrogacy Act 2012 or a law, of another State or a Territory or a foreign country, that corresponds to that Act; and (b) who has not ceased to be a child of the other person under that Act or law; surrogate parent, in relation to another person, means a person – (a) who is a parent of the other person by virtue of the operation of section 26(1) of the Surrogacy Act 2012 or a law, of another State or a Territory or a foreign country, that corresponds to that Act; and (b) who has not ceased to be a parent of the other person under that Act or law; Tasmanian court means – (a) the Supreme Court; or (b) any other court created by Parliament – (including such a court exercising federal jurisdiction) and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence; tendency evidence means evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection; tendency rule means the rule referred to in section 97(1) ; traditional laws and customs of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group; witness includes a witness referred to in subsections (7) and (8) . (2) A reference in this Act to examination in chief of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re-examination. (3) A reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence. (4) A reference in this Act to re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning (other than further examination in chief with the leave of the court) conducted after the cross-examination of the witness by another party. (5) If a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to the questioning of the witness by that party before the witness is questioned by another party. (6) For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country. (7) A reference in this Act to a witness includes a reference to a party giving evidence. (8) A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence. (9) A reference in subsections (7) and (8) to a party includes a defendant in a criminal proceeding. (10) A reference in this Act to a document includes a reference to – (a) any part of the document; or (b) any copy, reproduction or duplicate of the document or of any part of the document; or (c) any part of such a copy, reproduction or duplicate. (11) A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place. (12) A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia. (13) A reference in this Act to a child of a person includes a reference to – (a) an adopted child, surrogate child or ex-nuptial child of the person; or (b) a child living with a person as if the child were a member of the person's family. (14) A reference in this Act to a parent of a person includes a reference to – (a) an adoptive parent, or surrogate parent, of the person; or (b) if the person is an ex-nuptial child, the person's natural father; or (c) the person with whom a child is living as if the child were a member of the person's family. Note: The provisions in subsections (2) to (14) are contained in the Dictionary in the Evidence Act 1995 of the Commonwealth. 3A. References to business (1) A reference in this Act to a business includes a reference to the following: (a) a profession, calling, occupation, trade or undertaking; (b) an activity engaged in or carried on by the Crown in any of its capacities; (c) an activity engaged in or carried on by the government of a foreign country; (d) an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity); (e) the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; (f) the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature. (2) A reference in this Act to a business also includes a reference to – (a) a business that is not engaged in or carried on for profit; or (b) a business engaged in or carried on outside Australia. Note: The provisions in this section are contained in the Dictionary in the Evidence Act 1995 of the Commonwealth. 3B. Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if – (a) the person is dead; or (b) the person is, for any reason other than the application of section 16 , not competent to give the evidence; or (c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or (d) it would be unlawful for the person to give the evidence; or (e) a provision of this Act prohibits the evidence being given; or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or (g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact. Note: The provisions in this section are contained in the Dictionary in the Evidence Act 1995 of the Commonwealth. 3C. Unavailability of documents and things For the purposes of this Act, a document or thing is taken not to be available to a party if and only if – (a) it cannot be found after reasonable inquiry and search by the party; or (b) it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person; or (c) it would be impractical to produce the document or thing during the course of the proceeding; or (d) production of the document or thing during the course of the proceeding could render a person liable to conviction for an offence; or (e) it is not in the possession or under the control of the party and – (i) it cannot be obtained by any judicial procedure of the court; or (ii) it is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or (iii) it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding. Note: The provisions in this section are contained in the Dictionary in the Evidence Act 1995 of the Commonwealth. 3D. Representations in documents For the purposes of this Act, a representation contained in a document is taken to have been made by a person if – (a) the document was written, made or otherwise produced by the person; or (b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document. Note: The provisions in this section are contained in the Dictionary in the Evidence Act 1995 of the Commonwealth. PART 2 - Application of Act 4. Courts and proceedings to which Act applies (1) This Act applies to all proceedings in a Tasmanian court including proceedings that – (a) relate to bail; or (b) are interlocutory proceedings or proceedings of a similar kind; or (c) are heard in chambers; or (d) subject to subsection (2) , relate to sentencing. (2) If a proceeding relates to sentencing – (a) this Act applies only if the court directs that the law of evidence applies in the proceeding; and (b) if the court 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 referred to in subsection (2) if – (a) a party to the proceeding applies for 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 the fact is or will be significant in determining a sentence to be imposed in the proceeding. (4) The court must make a direction if it considers it appropriate in the interest of justice. 5. Extended application of certain provisions Note: The Evidence Act 1995 of the Commonwealth includes a provision that extends the application of specified provisions of the Commonwealth Act to proceedings in all Australian courts. 6. Territories Note: The Evidence Act 1995 of the Commonwealth includes a provision extending that Act to each external Territory. 7. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. 8. Operation of other Acts This Act does not affect the operation of the provisions of any other Act. 9. Application of common law and equity (1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment. (2) Without limiting subsection (1) , this Act does not affect the operation of such a principle or rule so far as it relates to any of the following: (a) the admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of a court; (b) the operation of a legal or evidential presumption that is consistent with this Act; (c) a court's power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding. 10. Parliamentary privilege preserved (1) This Act does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament. (2) In particular, section 15(2) does not affect, and is in addition to, the law relating to such privileges. 11. General powers of court (1) The power of a court to control the conduct of a proceeding is not affected by this Act, except where this Act provides otherwise expressly or by necessary intendment. (2) The powers of a court with respect to abuse of process in a proceeding are not affected. Chapter 2 - Adducing evidence PART 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. (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 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 another person or source. 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, if compelled to give evidence, would 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 of which he or she is a member. 16. Competence and compellability: judges and jurors (1) Subject to subsection (2) , a person who is a judge or juror in a proceeding is not competent to give evidence in that proceeding. (2) A juror in a proceeding is competent to give evidence in the proceeding about matters affecting the conduct of the proceeding. (3) A person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about 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 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) . 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, 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 object, 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) The court is to hear and determine any objection in the absence of a 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, 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 purpose 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. 19. Compellability of spouses and others in certain proceedings Section 18 does not apply in proceedings if – (a) the defendant is charged with incest; or (b) the defendant is charged with a crime under section 124 , 124A , 124B , 124C , 125 , 125A , 125B , 126 , 127 , 127A , 128 or 129 of the Criminal Code against a person who, at the time the alleged crime was committed, had not attained the age of 16 years; or (c) the defendant is charged with a crime under section 298 , 299 or 300 of the Criminal Code in relation to a crime referred to in paragraph (b) or (d) ; or (d) the defendant is charged under any provision of Chapter XIX or XX of the Criminal Code with a crime against a person who, at the time of the alleged crime, had not attained the age of 16 years; or (e) the defendant is charged with an offence under the Police Offences Act 1935 involving an assault on, or the threat of violence to, a person who, at the time of the alleged offence, had not attained the age of 16 years; or (f) the defendant is charged with assault against, or any other offence involving violence or the threat of violence to, his or her spouse or a parent or child of the defendant; or (fa) the defendant is charged with family violence, within the meaning of the Family Violence Act 2004 ; or (g) the proceedings were instituted as the result of a complaint by the spouse for an offence alleged to have been committed by the defendant against or in relation to the property of his or her spouse. Note: This section differs from section 19 of the Evidence Act 1995 of the Commonwealth. 20. Comment on failure to give evidence (1) This section only applies in a criminal proceeding for an indictable offence. (2) The judge or any party, other than the prosecutor, may comment on the failure of a defendant to give evidence. (3) Unless the comment under subsection (2) is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned. (4) The judge or any party, other than the prosecutor, may comment on the failure to give evidence by a person who, at the time of the failure, was – (a) the defendant's spouse; or (b) a parent or child of the defendant. (5) Unless the comment under subsection (4) is made by another defendant in the proceeding, the comment must not suggest that the spouse, parent or child failed to give evidence because – (a) the defendant was guilty of the offence concerned; or (b) the spouse, parent or child believed that the defendant was guilty of the offence concerned. (6) 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 a parent or child, of any of those persons to give evidence – the judge, in addition to commenting on the failure to give evidence, may comment on any comment of a kind referred to in paragraph (b) . Division 2 - Oaths and affirmations 21. Sworn evidence by oath or affirmation (1) A witness in a proceeding must take an oath or make an affirmation before giving evidence. (2) Subsection (1) does not apply to a person who gives unsworn evidence under section 13 . (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) A witness is to take an oath by answering "I swear" or make an affirmation by answering "I affirm" in reply to the oath or affirmation being tendered in accordance with form 1 or form 3 in Schedule 1 . (5) An affirmation has the same effect for all purposes as an oath. Note: This section differs from section 21 of the Evidence Act 1995 of the Commonwealth. 22. Interpreters to act on oath or affirmation (1) A person must take an oath, or make an affirmation, before acting as an interpreter in a proceeding. (2) The person is to take an oath by answering "I swear" or make an affirmation by answering "I affirm" in reply to the oath or affirmation being tendered in accordance with form 2 or form 4 in Schedule 1 . (3) An affirmation has the same effect for all purposes as an oath. Note: This section differs from section 22 of the Evidence Act 1995 of the Commonwealth. 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 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 purpose 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. 25. Rights to make unsworn statements unaffected Note: The Evidence Act 1995 of the Commonwealth includes a provision preserving any right of a defendant under the law of a State or Territory to make an unsworn statement. The right to make an unsworn statement remains in Norfolk Island. Division 3 - General rules about giving evidence 26. Court's control over questioning of witness The court may make any orders it considers just in relation to – (a) the way in which witnesses are to be questioned; and (b) the production and use of documents and things in connection with the questioning of witnesses; and (c) the order in which parties may question a witness; and (d) the presence and behaviour of any person in connection with the questioning of witnesses. 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 and responses of witness (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. 30A. Unsworn statements In criminal proceedings, a defendant is not entitled to give evidence by means of an unsworn statement. Note: This section does not appear in the Evidence Act 1995 of the Commonwealth. 31. Deaf and mute witnesses (1) A witness who cannot hear adequately may be questioned in any appropriate way. (2) A witness who cannot speak adequately may give evidence by any appropriate means. (3) The court may give directions concerning either or both of the following: (a) the way in which a witness may be questioned under subsection (1) ; (b) the means by which a witness may give evidence under subsection (2) . (4) This section does not affect the right of a witness to whom this section applies to give evidence about a fact through an interpreter under section 30 . 32. Attempts to revive memory in court (1) A witness, in the course of giving evidence, must not 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, while giving evidence, has used a document to try to revive his or her memory about a fact or opinion, the witness, with the leave of the court, may read aloud as part of his or her evidence so much of the document as relates to that fact or opinion. (4) The court, on the request of a party, is to give any directions it thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party. 33. Evidence 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, on the request of a party, may give any 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. Examination 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 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 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. 38. Unfavourable witness (1) A party who called a witness, with the leave of the court, may 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, with the leave of the court, may question the witness about matters relevant only to the witness's credibility. (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, 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 co