Western Australia: Evidence Act 1906 (WA)

Western Australia Evidence Act 1906 Western Australia Evidence Act 1906 Contents 1. Short title 1 3. Terms used 1 4. Application of Act 1 5A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies 1 5. This Act not to derogate from existing powers 1 6. Witnesses interested or convicted of offence 1 7. Parties to civil proceedings and spouses and ex‑spouses of parties 1 8. Accused persons in criminal cases 1 9. Spouses and ex‑spouses of accused persons in criminal cases 1 11. Court may compel answer to incriminating question 1 11A. Judge may restrict publication of evidence where s. 11 certificate given 1 12. Witnesses in revenue cases may be compelled to give evidence 1 13. Certificate under s. 12 may be pleaded in bar to prosecution 1 14. Customs prosecutions, accused compellable 1 15. Persons may be examined without subpoena 1 16. Witnesses failing to attend trial 1 17. Procedure on non‑appearance of witness 1 18. Communications during marriage 1 19. Evidence of non‑access 1 19A. Terms used 1 19B. Protected communications recorded electronically 1 19C. Protected communications not to be disclosed in criminal proceedings except with leave of court 1 19D. Procedure on hearing of application for leave 1 19E. Application for leave to be dismissed if there is no legitimate forensic purpose for it 1 19F. Determination of application 1 19G. Public interest test 1 19H. Effect of consent 1 19I. Loss of sexual assault communications privilege: misconduct 1 19J. Ancillary orders 1 19K. Inadmissibility of evidence that must not be adduced or given 1 19L. Application of other laws 1 19M. Regulations as to disclosure of protected communications 1 20A. Terms used 1 20B. Application of protection provisions (PCR) 1 20C. Exclusion of evidence of protected confidences 1 20D. Loss of professional confidential relationship protection: consent 1 20E. Loss of professional confidential relationship protection: misconduct 1 20F. Ancillary orders 1 20G. Terms used 1 20H. Application of protection provisions (journalists) 1 20I. Protection of identity of informants 1 20J. Direction to give identifying evidence 1 20K. Effect of misconduct as to directions 1 20L. Identifying informant with consent 1 20M. Ancillary orders 1 20. How far a party may discredit his own witness 1 21. Cross‑examination as to and proof of prior inconsistent statement 1 22. Procedure for purposes of s. 21 1 23. Cross‑examination as to and proof of previous conviction 1 24. Questions tending to criminate 1 25. Cross‑examination as to credit 1 25A. Cross‑examination by accused in person 1 26. Improper questions 1 27. Prohibited questions not to be published 1 27A. Form of evidence 1 27B. Manner of giving voluminous or complex evidence 1 29. Intention to defraud, proof of 1 30. Proof by attesting witness unnecessary in certain cases 1 31. Comparison of disputed hand‑writing 1 31A. Propensity and relationship evidence 1 32. Admissions by accused persons in criminal cases 1 32A. Derogation of privilege in civil proceedings 1 35. Perjury charge, corroboration not required 1 36. Perjury charge, proof of trial etc. 1 36A. Terms used 1 36B. Sexual reputation of complainant, evidence of 1 36BA. Sexual disposition of complainant, evidence of 1 36BC. Sexual experience of complainant, evidence of 1 36BD. Lack of complaint, jury warning about 1 36BE. Expert evidence of child behaviour 1 36C. Names of complainants not to be published 1 37. Terms used 1 38. What may constitute evidence of family violence 1 39. Expert evidence of family violence 1 39A. Evidence of family violence — general provision 1 39B. Evidence of family violence — self‑defence 1 39C. Request for direction on family violence — self‑defence 1 39D. Request for direction on family violence — general provision 1 39E. Content of direction on family violence 1 39F. Additional matters for direction on family violence 1 39G. Application of s. 39E and 39F to criminal proceedings without juries 1 40. Customs prosecutions, effect of averments in 1 41. Customs prosecutions, proof of appointment of officers 1 41A. Stealing and receiving charges, evidence of ownership of property stolen from ships, wharves etc. 1 42. Evidence on trial for defamation 1 44. Stealing charges, proof of receipt of money by accused, proof of general deficiency 1 45. Seals and stamps for the revenue or post office, proof of 1 46. Receiving charges, proof of knowledge that goods were stolen 1 46A. Sunrise and sunset, proof of 1 47. Conviction, acquittal and identity, proof of 1 49. Actions for seduction 1 50. Corroboration warnings not generally required 1 50A. Transcripts, proof of 1 50B. DNA evidentiary certificate 1 51. Prisoner required to give evidence may be brought up on order 1 52. Expense of bringing up prisoner 1 53. Commonwealth and States etc., and their Acts to be judicially noticed 1 54. Seals of the Commonwealth and States to be judicially noticed 1 55. Official seals to be judicially noticed 1 56. Certain signatures to be judicially noticed 1 57. United Kingdom proclamations, regulations etc., proof of 1 58. Australasian proclamations, regulations etc., proof of 1 59. Customs Act 1901 (Cwlth) proclamations, regulations etc., proof of 1 60. Australian States' proclamations and acts of State, proof of 1 61. WA proclamations, regulations etc., proof of 1 62. Documents admissible in United Kingdom etc. to be admissible in WA 1 63. Foreign States' proclamations, acts of State etc., proof of 1 64. Foreign States' proclamations etc. admissible even if not sealed 1 65. Copies of public documents admissible in some cases 1 65A. Certified photographs from library admissible 1 66. Parliamentary proceedings in Australasia, proof of 1 67. Certain documents admissible without proof of signature, seal etc. 1 68. Register of British vessels etc., proof of 1 69. Newspaper proprietors, proof of register of 1 69A. WA registers, proof of 1 70. Statutes etc. of any country, proof of 1 71. Certain law reports and texts may be referred to as evidence of laws 1 72. Authoritative texts on history, science etc., reference to 1 73. Documents admitted into evidence may be impounded 1 73A. Reproductions admissible (best evidence rule modified) 1 73B. Certified reproductions of certain public documents etc., admissible without further proof 1 73BA. Authenticated copies of certain public documents etc. admissible without further proof 1 73N. Reproductions of documents over 30 years old, presumptions as to 1 73Q. Reproduced official seals and signatures to be judicially noticed 1 73U. Reproduction admissible subject to Stamp Act 1921 or Duties Act 2008 1 74. Gazettes of certain places, proof of 1 75. Government Printers' publications, proof of 1 76. Her Majesty's Stationery Office publications, status of 1 77. Acts of governors and ministers of States, proof of 1 78. Local laws, by‑laws and regulations, proof of 1 79. Incorporation of a company, proof of 1 79A. Document requiring attestation, proof of 1 79B. Terms used 1 79C. Documentary evidence, admissibility of 1 79D. Evidence admitted under s. 79C, weight and effect of 1 79E. Qualified person, evidence as to credibility of 1 79F. Dispute as to happening of event 1 80. Judgments, orders etc., proof of 1 81. Documents properly authenticated to be given faith and credit 1 89. Banker's book entries are evidence of transactions etc. 1 90. Banker's books, proof of 1 91. Banker's books, copies to be certified 1 92. Bank accounts, bank officer may give evidence about 1 92A. Australian and foreign banks, application to of s. 89 to 92 1 93. Bank officers not compellable in some cases 1 94. Banker's books, Supreme Court may order inspection of 1 95. Costs under s. 93 and 94 1 96. Supreme Court judge's powers may be exercised by other judicial officers 1 97. Evidence to be on oath except in some cases 1 100A. Oath may be dispensed with in some cases 1 102. Interpreters, oaths etc. for 1 103. Interpreters, oath etc. may be dispensed with 1 104A. Person appointed by foreign court etc. may take or receive evidence and administer oath 1 105. Oaths, Affidavits and Statutory Declarations Act 2005, application of 1 106A. Terms used 1 106B. Children under 12 may give sworn evidence 1 106C. Child under 12 and mentally impaired witness may give unsworn evidence 1 106D. Corroboration warning on evidence of child not to be given 1 106E. Child witness entitled to support 1 106F. Child witness may be given assistance 1 106G. Cross‑examination of protected witness by unrepresented accused 1 106H. Child's statement to another admissible in Sch. 7 proceedings 1 106HA. Visual recording of interviews with children and persons with mental impairment 1 106HB. Admissibility in criminal proceedings of visual recording of interview with child or person with mental impairment 1 106HC. Regulations about visual recording of interviews with children and persons with mental impairment 1 106HD. Admissibility of visually recorded interviews generally 1 106I. Visual recording of child's evidence, application for directions 1 106K. Child's evidence in full, special hearing to take and record 1 106M. Recording not to be altered without approval 1 106MA. Unauthorised possession or dealing in video‑taped evidence 1 106MB. Broadcast of video‑taped evidence prohibited 1 106N. Video links or screening arrangements may be used 1 106O. Court may order that s. 106N does not apply 1 106P. Instructions to be given to jury 1 106Q. Identification of accused by child or special witness 1 106R. Special witnesses, measures to assist 1 106RA. Visually recording evidence of witnesses in criminal matters 1 106S. Special hearings to consider what orders should be made 1 106T. Use of recordings made under s. 106K or 106N 1 109. Terms used 1 110. Superior courts may make orders for obtaining evidence 1 111. Supreme Court may make orders for obtaining evidence for inferior courts 1 112. Exclusion of evidence in criminal proceeding 1 113. Operation of other laws 1 114. Regulations and rules of court for s. 109 to 113 1 115. Terms used 1 116. Application to Supreme Court for assistance in obtaining evidence for proceedings in other court 1 117. Supreme Court may make orders to assist in obtaining evidence 1 118. Privilege of witnesses 1 118A. Rules of court for s. 116 to 118 1 118B. Offence 1 118C. Operation of other laws 1 119. Service as witness etc., payments for 1 120. Terms used 1 121. WA court may take evidence or receive submission by video link or audio link 1 122. Counsel entitled to practise 1 123. Recognized court may take evidence or receive submission from person in this State 1 124. Recognized court's powers 1 125. Recognized court may make orders 1 126. Enforcement of order under s. 125 1 127. Privileges, protection and immunity of participants in proceedings in recognized court 1 128. Recognized court may administer an oath in the State 1 129. Assistance to recognized court 1 130. Contempt of recognized court 1 131. Regulations for fees and expenses relating to use of video link or audio link 1 132. Operation of other laws 1 133. Regulations and rules of court for purposes of Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 1 134. Review of amendment made by Family Violence Legislation Reform Act 2020 1 The Second Schedule Part 1 — Offences under The Criminal Code Part 2 — Offences under the Road Traffic Act 1974 Part 3 — Offences under the Western Australian Marine Act 1982 Part 4 — Offences under the Children and Community Services Act 2004 Part 5 — Offences under the Misuse of Drugs Act 1981 Part 6 — Offence under the Public Health Act 2016 The Fourth Schedule The Fifth Schedule The Sixth Schedule Schedule 7 Part A Part B Part C Notes Compilation table 1 Uncommenced provisions table 1 Other notes 1 Defined terms Western Australia Evidence Act 1906 An Act to consolidate and amend the statute law of evidence. 1. Short title This Act may be cited as the Evidence Act 1906. [2. Omitted under the Reprints Act 1984 s. 7(4)(f).] 3. Terms used In this Act, unless the context or subject matter otherwise indicates or requires, — Act includes Ordinance; Australasian colony means and includes New South Wales, Queensland, South Australia, Tasmania, Victoria, and Western Australia during such time as such possessions constituted separate colonies; New Zealand, and any part of New Zealand during such time as such part constituted a separate colony; Fiji; and any other British possession which may at any time be created within Her Majesty's possessions in Australasia; bank means — (a) an ADI (authorised deposit‑taking institution) as defined in section 5 of the Banking Act 1959 of the Commonwealth; or (b) a bank constituted by a law of a State, a Territory or the Commonwealth; bankers' books and expressions referring to bankers' books include ledgers, day books, cash books, account books, and all other books used in the ordinary business of the bank however such books are compiled, recorded or stored, whether in written form or on microfilm or by electronic process or otherwise; colony includes province; Commonwealth means the Commonwealth of Australia; court includes the High Court of Australia, the Supreme Court, the District Court, the Children's Court, the Family Court, the Magistrates Court, a warden's court under the Mining Act 1978, and a court of summary jurisdiction; document includes a part of a document; examined copy means a copy proved to have been examined with the original, and to correspond therewith. The examination may be made either by one person reading both the original and the copy or by 2 persons, one reading the original and the other the copy, and it is not necessary that each should alternately read both; Gazette means and includes the London Gazette, the Edinburgh Gazette, the Dublin Gazette, the Commonwealth of Australia Gazette and the Government Gazette, Royal Gazette, or other official gazette of any State or Australasian colony; Government Printer means and includes the Printer to Her Majesty, and any person printing or publishing for the Government of the Commonwealth or of any State or Australasian colony, and any person purporting to be authorised to print or publish the Statutes, Ordinances, Acts of State, or other public Acts of the Legislature of any Australasian colony, or otherwise to be the Government Printer of such colony; judge means a Justice of the High Court of Australia and a judge of the Supreme Court of Western Australia, and includes a judge of The District Court of Western Australia, a judge of the Family Court of Western Australia, a judge or magistrate of the Children's Court of Western Australia, a magistrate of the Magistrates Court, a coroner within the meaning of the Coroners Act 1996, and also any justice or justices of the peace sitting in court; legal proceeding or proceeding includes any action, trial, inquiry, cause, or matter, whether civil or criminal, in which evidence is or may be given, and includes an arbitration; person acting judicially means any person having, in Western Australia, by law or by consent of parties, authority to hear, receive, and examine evidence; photograph means a durable facsimile of an original obtained by any photographic, photostatic or similar process; prisoner means and includes any person committed to prison for punishment, or on remand, or for trial, safe custody, or otherwise; State means a State of the Commonwealth; the State means the State of Western Australia or the colony of Western Australia prior to the establishment of the Commonwealth; uncorroborated evidence, in relation to the conviction of a person accused of an offence, means evidence that is not corroborated in some material particular by other evidence implicating the accused person; votes and proceedings shall be deemed to include journals and minutes, and any papers purporting to be printed by the authority of and to be laid before either House of the Parliament of the Commonwealth, or of any State or of any Australasian colony. [Section 3 amended: No. 11 of 1964 s. 2; No. 111 of 1978 s. 2; No. 66 of 1987 s. 4; No. 70 of 1988 s. 35; No. 15 of 1991 s. 23; No. 73 of 1994 s. 4; No. 26 of 1999 s. 78(2); No. 71 of 2000 s. 3; No. 15 of 2003 s. 15; No. 59 of 2004 s. 89; No. 13 of 2021 s. 57.] 4. Application of Act All the provisions of this Act, except where the contrary intention appears, shall apply to every legal proceeding. 5A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies The Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies to this Act (other than section 19B). [Section 5A inserted: No. 20 of 2013 s. 60.] 5. This Act not to derogate from existing powers The provisions of this Act shall be in addition to and not in derogation of any powers, rights, or rules of evidence existing at common law, or given by any law at any time in force in the State not inconsistent with the provisions of this Act. Competency and compellability of witnesses 6. Witnesses interested or convicted of offence No person shall be excluded from giving evidence in any proceeding on the ground that he has or may have an interest in the matter in question, or in the result of the proceeding, or on the ground that he has previously been convicted of any offence. 7. Parties to civil proceedings and spouses and ex‑spouses of parties In any civil proceeding the parties thereto and the persons on whose behalf such proceeding is brought or defended, and the wives, former wives, husbands and former husbands of such parties or persons respectively, shall, subject to the provisions of this Act, be competent and compellable to give evidence on behalf of either or any of the parties to such proceeding. [Section 7 amended: No. 48 of 1991 s. 5.] 8. Accused persons in criminal cases (1) Except as in this Act it is otherwise provided, every person charged with an offence shall be a competent but not a compellable witness at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person: Provided as follows — (a) a person so charged shall not be called as a witness except upon his own application; [(b) deleted] (c) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution; (d) a person charged and being a witness in pursuance of this section may be asked any question in cross‑examination, notwithstanding that it would tend to criminate him as to the offence charged; (e) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless — (i) the proof that he has committed or been convicted of such other offence is admissible in evidence to show that he is guilty of the offence wherewith he is then charged; or (ii) he has personally, or by his advocate, asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution or a person who died as a result of the offence wherewith he is then charged; or (iii) he has given evidence against any other person charged with the same offence; (f) when paragraph (e)(ii) or (iii) is or becomes applicable to any person charged who gives evidence for the defence, it shall be open to the prosecution, or to any other person charged against whom he has given evidence, to call evidence, that such person is of bad character or has been convicted of or charged with any offence other than that with which he then stands charged, notwithstanding that the case for the prosecution or of such other person charged may already have been closed; (g) every person called as a witness in pursuance of this section shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence. [(2) deleted] [Section 8 amended: No. 16 of 1913 s. 2; No. 48 of 1991 s. 6; No. 71 of 2000 s. 4; No. 27 of 2002 s. 30; No. 84 of 2004 s. 41.] 9. Spouses and ex‑spouses of accused persons in criminal cases (1) In any criminal proceeding (and at every stage of the proceeding), the wife or husband of an accused shall, subject to this Act, be — (a) competent to give evidence on behalf of the prosecution, the accused or any person being tried jointly with the accused; and (b) compellable to give evidence on behalf of the accused or any person being tried jointly with the accused; and (c) compellable to give evidence on behalf of the prosecution against the accused or any person being tried jointly with the accused if — (i) the accused is charged with an offence under a provision mentioned in the Second Schedule or under a repealed Code section; or (ii) the accused is charged with attempting or conspiring to commit, or with inciting the commission of, an offence under a provision mentioned in the Second Schedule or under a repealed Code section; or (iii) the accused is charged on the complaint of the wife or husband with an offence committed with respect to the property of the wife or husband; or (iv) the wife or husband is compelled, under another enactment, to give that evidence. (2) In any criminal proceeding (and at every stage of the proceeding), a former wife or former husband of an accused shall, subject to this Act, be competent and compellable to give evidence on behalf of the prosecution, the accused or any person being tried jointly with the accused. [(3) deleted] (4) Nothing in this section shall operate to compel an accused in any criminal proceeding to give evidence in the proceeding. (5) If the wife or husband of an accused in any criminal proceeding is called as a witness for the prosecution but is not a compellable witness for the prosecution, it is the duty of the judge to inform the wife or husband that she or he is not compellable to give evidence on behalf of the prosecution if she or he is unwilling to do so. (6) In subsection (1) — repealed Code section means a repealed section of The Criminal Code that, before it was repealed, enacted an offence constituted by acts or omissions that are substantially the same as the acts or omissions that constitute an offence under a section of The Criminal Code that is mentioned in Part 1 of the Second Schedule. [Section 9 inserted: No. 48 of 1991 s. 7; amended: No. 71 of 2000 s. 5; No. 27 of 2002 s. 31; No. 84 of 2004 s. 82.] [10. Deleted: No. 48 of 1991 s. 8.] 11. Court may compel answer to incriminating question (1) Whenever in any proceeding any person called as a witness, or required to answer any interrogatory, declines to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him, the judge may, if it appears to him expedient for the ends of justice that such person should be compelled to answer such question or interrogatory, tell such person that, if he answers such question or interrogatory, and other questions or interrogatories that may be put to him, in a satisfactory manner, he will grant him the certificate hereinafter mentioned. (2) Thereupon such person shall no longer be entitled to refuse to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him; and thereafter if such person shall have given his evidence to the satisfaction of the judge, the judge shall give such person a certificate to the effect that he was called as a witness or interrogated in the said proceeding and that his evidence was required for the ends of justice, and was given to his satisfaction. (2a) Where in a proceeding a person is given a certificate under subsection (2) in respect of any evidence, a statement made by him, as part of that evidence, in answer to a question or interrogatory is not admissible in evidence in criminal proceedings against the person other than on a prosecution for perjury committed in the proceeding. (3) In subsections (1) and (2), judge does not include a justice of the peace when constituting the Magistrates Court or the Children's Court, whether sitting alone or with another justice of the peace. [Section 11 amended: No. 47 of 1990 s. 4 1; No. 15 of 1991 s. 23; No. 59 of 2004 s. 89.] 11A. Judge may restrict publication of evidence where s. 11 certificate given (1) Where in a proceeding a judge gives to a person a certificate under section 11(2) in respect of any evidence and the judge considers that publication of a report of the evidence or of the giving of the certificate may tend to prejudice any prosecution that has been or may be brought against the person, the judge may make an order prohibiting publication of a report of or relating to the evidence, or any part of the evidence, and may extend the order to include a report of the fact that the certificate was granted. (2) A person who fails to comply with an order made under subsection (1) commits a contempt of the Supreme Court and is punishable accordingly by that court. (3) Where a body corporate fails to comply with an order made under subsection (1) and it is proved that the failure occurred with the consent, connivance, or authority of any director, manager, secretary or other officer of the body corporate, or of any member of the managing body of the body corporate, or of any person who was purporting to act in any such capacity, he or she as well as the body corporate commits the contempt and is punishable under subsection (2). [Section 11A inserted: No. 47 of 1990 s. 5.] 12. Witnesses in revenue cases may be compelled to give evidence (1) In any proceeding for the breach of any Act relating to — (a) duty under the Duties Act 2008; or (b) the public revenues; or (c) the sale of intoxicating liquors, or in any proceeding brought by or on behalf of or against the Crown under or in pursuance of the provisions of any such Act, the judge may require any person, except the accused in proceedings under paragraph (c), to be examined as a witness. (2) A person so required to be examined as aforesaid shall not be excused from being so examined, or from answering any question put to him touching any such breach as aforesaid, on the ground that his evidence will tend to incriminate him. (3) If any such person refuses to be examined, or to answer any such question as aforesaid, he shall be deemed to be a witness appearing under a subpoena and refusing without lawful cause or excuse to be sworn or to give evidence. (4) Every person required to be examined under this section touching any such breach as aforesaid, who on such examination makes to the best of his knowledge true and faithful discovery of all matters whereon he is so examined touching such breach and thereby gives evidence tending to incriminate himself shall, on application, receive from the judge before whom he is examined a certificate that he has made such true and faithful discovery. (5) In subsections (1) and (4), judge does not include a justice of the peace when constituting the Magistrates Court or the Children's Court, whether sitting alone or with another justice of the peace. [Section 12 amended: No. 15 of 1991 s. 23; No. 59 of 2004 s. 89; No. 12 of 2008 Sch. 1 cl. 8(1); No. 20 of 2013 s. 61.] 13. Certificate under s. 12 may be pleaded in bar to prosecution If any person examined as a witness under section 12 receives the certificate therein mentioned (but not otherwise) he shall be freed from all criminal prosecutions and penal actions, and from all penalties, forfeitures, and punishments to which he was liable for anything done before that time in respect of the matters touching which he is so examined: Provided that nothing herein contained shall make such certificate pleadable in bar of any indictment or information brought against such person for perjury committed in such proceedings as aforesaid. [Section 13 amended: No. 47 of 1990 s. 6.] 14. Customs prosecutions, accused compellable In every Customs prosecution, except for an indictable offence or for an offence directly punishable by imprisonment, the accused is compellable to give evidence. [Section 14 amended: No. 84 of 2004 s. 82.] 15. Persons may be examined without subpoena Any person present at any legal proceeding wherein he might have been compellable to give evidence and produce documents by virtue of a subpoena or other summons or order duly issued and served for that purpose, shall be compellable to give evidence and produce documents then in his possession and power, in the same manner, and in case of refusal shall be subject to the same penalties and liabilities, as if he had been duly subpoenaed or summonsed for that purpose. 16. Witnesses failing to attend trial (1) Where any person duly bound by recognizance or served with a subpoena, summons, or order to attend in any court as a witness at the trial of any case, civil or criminal, fails to appear when called in open court, either at such trial or upon the day appointed for such trial, the court may — (a) upon proof of such recognizance or of his having been duly served with such subpoena, summons, or order, call upon him to show cause why execution upon such recognizance or an attachment for disobedience to such subpoena, summons, or order should not be issued against him; or (b) upon proof of such recognizance or service, and also that his non‑appearance is without just cause or reasonable excuse, and upon oath that he will probably be able to give material evidence, issue a warrant to bring him before the court to give evidence at such trial. (2) Such proof may be oral before the court or by affidavit. 17. Procedure on non‑appearance of witness (1) Every rule or order to show cause as aforesaid may — (a) be made returnable before the court itself at the then sittings or at some future sitting; or (b) in respect of the non‑appearance of a witness at a Circuit Court or on the trial of a case pending in the Supreme Court, be made returnable in the Supreme Court. (2) On the return of any such rule or order, the court may deal with the case as the Supreme Court might and would have done upon a rule to the like effect issued out of that court. Privilege of witnesses 18. Communications during marriage Subject to the provisions of section 9, a husband shall not be compellable in any proceeding to disclose any communication made to him by his wife, or by him to his wife, during the marriage, and a wife shall not be compellable in any proceeding to disclose any communication made to her by her husband, or by her to her husband, during the marriage: Provided that this section shall not apply, in any proceeding in the Supreme Court in its divorce and matrimonial causes jurisdiction, or in any proceeding in the Family Court of Western Australia, to any husband and wife who are both parties to such proceeding. [Section 18 amended: No. 111 of 1978 s. 3; No. 48 of 1991 s. 9.] Spouses competent to give evidence as to non‑access [Heading inserted: No. 16 of 1956 s. 2.] 19. Evidence of non‑access In any proceedings including proceedings pending at the commencement of the Evidence Act Amendment Act 1956, either party to a marriage may give evidence proving or tending to prove that the parties to the marriage did not have sexual relations with each other at any particular time notwithstanding that such evidence would show or tend to show that any child born to the wife during the marriage was illegitimate. [Section 19 inserted: No. 16 of 1956 s. 2.] Protection of confidential communications given in counselling concerning sexual assault [Heading inserted: No. 31 of 2012 s. 4.] 19A. Terms used (1) In this section and sections 19B to 19M — application for leave means an application for leave to disclose or require disclosure of a protected communication in, or in connection with, any criminal proceedings; counselling communication means a communication — (a) made in confidence by a person upon or in respect of whom sexual assault was committed or is alleged to have been committed (the complainant) to another person (the counsellor) who is counselling the complainant in relation to any harm the complainant may have suffered; or (b) made in confidence to or about the complainant by the counsellor in the course of the counselling process; or (c) made in confidence about the complainant by a support person in the course of the counselling process; or (d) made in confidence by or to the counsellor to or by another person who is counselling, or has at any time counselled, the complainant, and includes a communication made through an interpreter; counsels has the meaning given to that term in subsection (2); disclose a protected communication means to disclose, or adduce or produce anything that would disclose — (a) the protected communication; or (b) the contents of a document recording the protected communication; harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear); protected communication means a counselling communication made by, to or about a complainant and includes — (a) a counselling communication made before the commission, or alleged commission, of sexual assault; and (b) a counselling communication not made in connection with sexual assault or alleged sexual assault or any condition arising from sexual assault or alleged sexual assault; and (c) a counselling communication made before the protection provisions were inserted into this Act; protected person, in relation to a protected communication, means — (a) the complainant; or (b) any person who made the protected communication; or (c) an interpreter through whom the protected communication was made; protection provisions means this section and sections 19B to 19M; require disclosure of a protected communication includes — (a) to require (whether by the issue of a subpoena or any other process or procedure) the production of a document recording the protected communication; and (b) to seek an order of the court that will, if made, result in the disclosure of the protected communication or the production of a document recording the protected communication; support person means a parent, carer or other supportive person who is present when a person counsels the complainant to facilitate communication between the complainant and the counsellor or to further the counselling process in some other way; supporting affidavit means the affidavit accompanying an application for leave. (2) A person counsels another person if — (a) the person has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm; and (b) the person — (i) listens to and gives verbal or other support or encouragement to the other person; or (ii) advises, gives therapy to or treats the other person, whether or not for fee or reward. (3) In the protection provisions, a reference to a document recording a protected communication — (a) is a reference to any part of the document that records a protected communication or any report, observation, opinion, advice, recommendation or other matter that relates to the protected communication made by a protected person; and (b) includes a reference to any copy, reproduction or duplicate of that part of the document. (4) For the purposes of the definition of counselling communication in subsection (1), a communication can be regarded as being made in confidence even if it is made in the presence of a support person or through or in the presence of an interpreter. [Section 19A inserted: No. 46 of 2004 s. 10.] 19B. Protected communications recorded electronically For the purposes of the protection provisions, if — (a) a document recording a protected communication is stored electronically; and (b) a written document recording the protected communication could be created by use of equipment that is usually available for retrieving or collating such stored information, the document stored electronically is to be dealt with as if it were a written document so created. [Section 19B inserted: No. 46 of 2004 s. 10.] 19C. Protected communications not to be disclosed in criminal proceedings except with leave of court (1) A person cannot disclose or require disclosure of a protected communication in, or in connection with, any criminal proceedings except with, and in accordance with, the leave of the court. (2) If a subpoena that purports to require the disclosure of a protected communication is issued without the leave of the court required by subsection (1), the subpoena is of no effect. (3) An application for leave must be made to the court in writing and must be accompanied by an affidavit stating why the applicant has a legitimate forensic purpose for having leave to disclose or require disclosure of the protected communication. (4) If the court considers that the supporting affidavit establishes a prima facie case that the applicant has a legitimate forensic purpose for having the leave, the court is to — (a) fix a day and time for hearing the application; or (b) determine that the application will be heard during the criminal proceedings referred to in subsection (1), and send notification of when the application will be heard, together with copies of the application and the supporting affidavit, to — (c) the applicant and each other party; and (d) each protected person identified in the application or the supporting affidavit; and (e) any other person identified in the application or the supporting affidavit as a person to whom the protected communication was made. (5) If the court does not consider that the supporting affidavit establishes a prima facie case that the applicant has a legitimate forensic purpose for having the leave, the court is to notify the applicant accordingly and the application for leave is taken to have been refused. (6) Section 19E(2) and (3) apply in relation to the court's consideration of whether the supporting affidavit establishes a prima facie case that the applicant has a legitimate forensic purpose for having the leave. (7) In this section — party means a party to the criminal proceedings referred to in subsection (1). [Section 19C inserted: No. 46 of 2004 s. 10.] 19D. Procedure on hearing of application for leave (1) A protected person or a person referred to in section 19C(4)(e) may appear, or be represented by counsel or solicitor, at the hearing of an application for leave and is to be informed of that right when a notification is sent under section 19C(4)(d) or (e). (2) If there is a jury, the court is to hear and determine an application for leave in the absence of the jury. [Section 19D inserted: No. 46 of 2004 s. 10.] 19E. Application for leave to be dismissed if there is no legitimate forensic purpose for it (1) On the hearing of an application for leave, leave is to be refused by the court if the applicant does not satisfy the court — (a) that the applicant has a legitimate forensic purpose for having leave to disclose or require disclosure of the protected communication; and (b) that other evidence to the same effect as — (i) the protected communication; or (ii) the contents of the document recording the protected communication, as the case may be, is not available. (2) In order to establish that the applicant has a legitimate forensic purpose under subsection (1)(a) it is not sufficient for the applicant — (a) to assert, without proving, one or more of the following — (i) that the protected communication discloses a prior inconsistent statement of the complainant; (ii) that the protected communication relates to the credibility of the complainant or another witness in the criminal proceedings; (iii) that the protected communication relates to the reliability of the testimony of the complainant merely because the complainant has received or is receiving counselling; or (b) to prove one or more of the following — (i) that the protected communication exists; (ii) that the protected communication relates to activity that is the subject of the criminal proceedings; (iii) that the protected communication was made close in time to the activity that is the subject of the criminal proceedings; (iv) that the protected communication reveals allegations of the commission of sexual assault against the complainant by a person other than the applicant. (3) Subsection (2) does not limit — (a) the matters which the court can consider in deciding whether the applicant has a legitimate forensic purpose under subsection (1)(a); or (b) the grounds on which the court can decide that the applicant does not have a legitimate forensic purpose under subsection (1)(a). [Section 19E inserted: No. 46 of 2004 s. 10.] 19F. Determination of application (1) If the court is satisfied as to the matters set out in section 19E(1)(a) and (b), the court is to determine the application for leave. (2) The court may, if it thinks it necessary in order to enable it to determine the application, conduct a preliminary examination of the evidence that is the subject of the application. (3) For the purpose of a preliminary examination the court may require a protected person — (a) to provide written answers to questions; or (b) to appear for oral examination. (4) A preliminary examination is to be conducted in the absence of the parties. [Section 19F inserted: No. 46 of 2004 s. 10.] 19G. Public interest test (1) In determining the application for leave, the court may grant leave to disclose, or require the disclosure of, the protected communication if, and only if, the court determines that it is in the public interest to do so. (2) For the purposes of subsection (1) the court is to have regard to the following — (a) the extent to which disclosing, or requiring the disclosure of, the protected communication is necessary to allow the applicant for leave to make a full defence; (b) whether the evidence of the protected communication or the contents of the document recording the protected communication will have substantial probative value; (c) the likelihood that disclosing, or requiring the disclosure of, the protected communication will affect the outcome of the proceedings; (d) the public interest in ensuring that complainants receive effective counselling, and the extent to which failure to preserve the confidentiality of protected communications may dissuade complainants from seeking counselling or diminish the effectiveness of counselling; (e) the public interest in ensuring that adequate records are kept of counselling communications; (f) the likelihood that disclosing, or requiring the disclosure of, the protected communication will cause harm to the complainant, and the nature and extent of that harm; (g) any other matter that the court considers relevant. [Section 19G inserted: No. 46 of 2004 s. 10.] 19H. Effect of consent (1) The protection provisions do not prevent a protected communication from being disclosed or being required to be disclosed in, or in connection with, any criminal proceedings if the complainant has consented to the disclosure. (2) Consent is not effective for the purposes of this section unless — (a) it is given in writing; and (b) it is given expressly for the purposes of the protection provisions. (3) This section does not apply if the complainant is a child. [Section 19H inserted: No. 46 of 2004 s. 10.] 19I. Loss of sexual assault communications privilege: misconduct (1) The protection provisions do not prevent the production or adducing of evidence of a communication made, or the production of a document prepared, in the furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty. (2) For the purposes of this section, if the commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that — (a) the fraud, offence or act was committed; and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act, the court may find that the communication was so made or document so prepared. [Section 19I inserted: No. 46 of 2004 s. 10.] 19J. Ancillary orders Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of, or the contents of a document recording, a protected communication, the court may — (a) order that all or part of the evidence be heard or document produced in camera; and (b) make any orders relating to the production, inspection, copying or reproduction of the document that, in the opinion of the court, are necessary to protect the safety and welfare of any protected person; and (c) make any orders relating to the suppression of publication of all or part of the evidence given before the court that, in its opinion, are necessary to protect the safety and welfare of any protected person; and (d) make any orders relating to disclosure of identity information that would tend to identify any protected person that, in the opinion of the court, are necessary to protect the safety and welfare of any protected person. [Section 19J inserted: No. 46 of 2004 s. 10.] 19K. Inadmissibility of evidence that must not be adduced or given Evidence that, because of the protection provisions, cannot be disclosed or required to be disclosed in proceedings is not admissible in the proceedings. [Section 19K inserted: No. 46 of 2004 s. 10.] 19L. Application of other laws (1) The protection provisions do not affect the operation of any rule of law in relation to evidence in criminal proceedings except to the extent that they expressly or necessarily have that effect. (2) Without limiting subsection (1), the protection provisions do not affect the operation of a rule of law so far as it relates to the inspection of a document required to be produced in, or in connection with, criminal proceedings. (3) Subject to subsections (4) and (5A), sections 238 and 239 of the Children and Community Services Act 2004 and section 46 of the Child Care Services Act 2007 do not apply to the production or disclosure of a protected communication in criminal proceedings. (4) If in criminal proceedings leave is given under the protection provisions to require disclosure of a departmental record as defined in subsection (1) of section 238 of the Children and Community Services Act 2004, subsections (5) to (8) of that section apply as if the departmental record had been produced in response to a requirement referred to in subsection (2) of that section. (5A) If in criminal proceedings leave is given under the protection provisions to require disclosure of — (a) a child care record as defined in the Child Care Services Act 2007 section 46(1), then section 46(5) to (8) of that Act applies as if the child care record had been produced in response to a requirement referred to in section 46(2) of that Act; or (b) protected information as defined in the Education and Care Services National Law (Western Australia) section 273(3), then section 46(5) to (8) of the Child Care Services Act 2007 applies as if the protected information — (i) was a child care record; and (ii) had been produced in response to a requirement referred to section 46(2) of that Act. (5) The protection provisions do not affect the operation of section 124F or 240 of the Children and Community Services Act 2004. [Section 19L inserted: No. 46 of 2004 s. 10; amended: No. 19 of 2007 s. 69; No. 26 of 2008 s. 12; No. 11 of 2012 s. 33; No. 6 of 2017 s. 9(2).] 19M. Regulations as to disclosure of protected communications The Governor may make regulations as to — (a) the forms to be used for an application for leave and the supporting affidavit; and (b) the manner in which a protected communication is to be described in an application for leave or the supporting affidavit; and (c) other matters to be included in an application for leave or the supporting affidavit; and (d) the procedure relating to an application for leave; and (e) any other matter that is necessary or convenient to be prescribed for the purposes of the protection provisions. [Section 19M inserted: No. 46 of 2004 s. 10.] Protection of confidential communications given in professional confidential relationships [Heading inserted: No. 31 of 2012 s. 5.] 20A. Terms used (1) In this section and in sections 20B to 20F — confidant means a person to whom a communication is made in confidence and includes a journalist as defined in section 20G; harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm, such as shame, humiliation and fear; protected confidence means a communication made by a person in confidence to another person (the confidant) — (a) in the course of a relationship in which the confidant was acting in a professional capacity; and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant; protected confider, in relation to a protected confidence, means the person who made the protected confidence; protected identity information means information about, or enabling a person to ascertain, the identity of the person who made a protected confidence; protection provisions (PCR) means this section and sections 20C to 20F. (2) For the purposes of the protection provisions (PCR), a communication may be made in confidence even if it is made in the presence of a third party if the third party's presence is necessary to facilitate communication. [Section 20A inserted: No. 31 of 2012 s. 5.] 20B. Application of protection provisions (PCR) (1) The protection provisions (PCR) do not apply in relation to a proceeding the hearing of which began before the commencement of those provisions. (2) The protection provisions (PCR) apply in relation to a protected confidence whether made before or after the commencement of those provisions. (3) The protection provisions (PCR) do not apply in relation to matters that are the subject of the protection provisions as defined in section 19A(1). (4) The protection provisions (PCR) do not affect the law relating to legal professional privilege. (5) The protection provisions (PCR) do not affect the law relating to evidence of a confession made by a person to a member of the clergy in the member's professional capacity according to the ritual of the church or religious denomination concerned. (6) A court may give a direction under the protection provisions (PCR) in respect of a protected confidence or protected identity information whether or not the protected confidence or protected identity information is privileged or protected under another provision of this Act or would be so privileged or protected except for a limitation or restriction imposed by that provision. (7) The protection provisions (PCR) are not intended to exclude or limit the operation of section 5 or the power of a court under any other law of the State to take any action if it is in the interests of justice to do so. [Section 20B inserted: No. 31 of 2012 s. 5.] 20C. Exclusion of evidence of protected confidences (1) A court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose — (a) a protected confidence; or (b) the contents of a document recording a protected confidence; or (c) protected identity information. (2) A court may give such a direction — (a) on its own initiative; or (b) on the application of the protected confider or confidant concerned, whether or not either is a party. (3) A court must give such a direction if it is satisfied that — (a) it is likely that harm would or might be caused, whether directly or indirectly, to the protected confider if the evidence is adduced; and (b) the nature, extent and likelihood of the harm outweigh the desirability of the evidence being given. (4) Without limiting the matters that a court may have regard to for the purposes of this section, it must have regard to the following matters — (a) the probative value of the evidence in the proceeding; (b) the importance of the evidence in the proceeding; (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; (d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates; (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider; (f) the means, including any ancillary orders that may be made under section 20F, available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed; (g) the likely effect of the evidence in relation to — (i) a prosecution that has commenced but has not been finalised; or (ii) an investigation, of which the court is aware, into whether or not an offence has been committed; (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person; (i) the public interest in preserving the confidentiality of protected confidences; (j) the public interest in preserving the confidentiality of protected identity information. (5) A court must not give a direction under this section in a proceeding for defamation concerning the publication of alleged defamatory matter containing or relying on a protected confidence unless the court is first satisfied that the content of the protected confidence is true, and if the court is so satisfied, subsections (3) and (4) apply. (6) A court must state its reasons for giving or refusing to give a direction under this section. [Section 20C inserted: No. 31 of 2012 s. 5.] 20D. Loss of professional confidential relationship protection: consent The protection provisions (PCR) do not prevent the giving or adducing of evidence with the consent of the protected confider concerned. [Section 20D inserted: No. 31 of 2012 s. 5.] 20E. Loss of professional confidential relationship protection: misconduct (1) In this section — misconduct, in relation to a person (the confider) who makes a communication in confidence to another person, includes any of the following — (a) an offence committed by the confider; (b) an act or omission on the part of the confider that renders the confider liable to a civil penalty; (c) deceit, dishonesty, inappropriate partiality or a breach of trust on the part of the confider; (d) the confider acting corruptly, or corruptly failing to act, in any capacity; (e) the confider corruptly taking advantage of the confider's position to obtain a benefit for the confider or another person or to cause a detriment to another person; (f) the confider engaging in conduct that adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of any person in any capacity; (g) misuse, on the part of the confider, of information or material that the confider has acquired in any capacity, whether the misuse is to obtain a benefit for the confider or any other person or to cause a detriment to another person; (h) conduct providing reasonable grounds for the termination of the confider's employment; (i) conduct providing reasonable grounds for disciplining the confider in relation to unsatisfactory professional conduct or professional misconduct, or the breach of a professional standard, in relation to the confider's profession, whether or not the confider is a member of the body that prescribed the standard. (2) The protection provisions (PCR) do not prevent the adducing of evidence of a communication made or the contents of a document prepared in the furtherance of misconduct by a person who makes a communication in confidence to another person. (3) For the purposes of this section, if the misconduct is a fact in issue and there are reasonable grounds for believing that — (a) the misconduct occurred; and (b) a communication was made or document prepared in furtherance of the misconduct, the court may find that the communication was so made or document so prepared. [Section 20E inserted: No. 31 of 2012 s. 5.] 20F. Ancillary orders Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of a protected confidence or protected identity information, the court may — (a) order that all or part of the evidence be heard in camera; and (b) make such orders relating to the suppression of publication of all or part of the evidence given before the court as, in its opinion, are necessary to protect the safety and welfare of the protected confider and are in the interests of justice. [Section 20F inserted: No. 31 of 2012 s. 5.] Protection of identity of journalists' informants [Heading inserted: No. 31 of 2012 s. 5.] 20G. Terms used In this section and in sections 20H to 20M — direction means a direction under section 20J(1); identifying evidence has the meaning given in section 20I; informant means a person who gives information to a journalist in the normal course of the journalist's work in the expectation that the information may be published in a news medium; journalist means a person engaged in the profession or occupation of journalism in connection with the publication of information in a news medium; national security has the meaning that it has in the National Security Information (Criminal and Civil Proceedings) Act 2004 (Commonwealth) section 7; news medium means a medium for the dissemination to the public or a section of the public of news and observations on news; person acting judicially does not include a member of a House of Parliament or a Committee of a House, or both Houses, of Parliament who, by law, has authority to hear, receive, and examine evidence; proceeding does not include a proceeding before either House of Parliament or a Committee of either House, or both Houses, of Parliament, in which evidence is or may be given; protection provisions (journalists) means this section and sections 20I to 20M. [Section 20G inserted: No. 31 of 2012 s. 5.] 20H. Application of protection provisions (journalists) (1) The protection provisions (journalists) do not apply in relation to a proceeding the hearing of which began before the commencement of those provisions. (2) The protection provisions (journalists) apply in relation to information given by an informant whether given before or after the commencement of those provisions. (3) The protection provisions (journalists) apply to a person acting judicially in any proceeding even if the law by which the person has authority to hear, receive, and examine evidence provides that this Act does not apply to the proceeding. (4) The protection provisions (journalists) are not intended to exclude or limit the operation of section 5 or the power that a person acting judicially has under any other law of the State to take any action if it is in the interests of justice to do so. [Section 20H inserted: No. 31 of 2012 s. 5.] 20I. Protection of identity of informants If a journalist has promised an informant not to disclose the informant's identity, neither the journalist nor a person for whom the journalist was working at the time of the promise is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained (identifying evidence). [Section 20I inserted: No. 31 of 2012 s. 5.] 20J. Direction to give identifying evidence (1) Despite section 20I, a person acting judicially may direct a person referred to in that section to give identifying evidence. (2) A person acting judicially may give a direction only if satisfied that, having regard to the issues to be determined in the proceeding, the public interest in the disclosure of the identity of the informant outweighs — (a) any likely adverse effect of the disclosure of the identity on the informant or any other person; and (b) the public interest in the communication of facts and opinions to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts. (3) Without limiting the matters that a person acting judicially may have regard to for the purposes of this section, the person acting judicially must have regard to the following matters — (a) the probative value of the identifying evidence in the proceeding; (b) the importance of the identifying evidence in the proceeding; (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; (d) the availability of any other evidence concerning the matters to which the identifying evidence relates; (e) the likely effect of the identifying evidence, including the likelihood of harm, and the nature and extent of harm that would be caused to the informant or any other person; (f) the means, including any ancillary orders that may be made under section 20M, available to the person acting judicially to limit the harm or extent of the harm that is likely to be caused if the identifying evidence is given; (g) the likely effect of the identifying evidence in relation to — (i) a prosecution that has commenced but has not been finalised; or (ii) an investigation, of which the person acting judicially is aware, into whether or not an offence has been committed; (h) whether the substance of the identifying evidence has already been disclosed by the informant or any other person; (i) the risk to national security or to the security of the State; (j) whether or not there was misconduct, as defined in section 20K(1), on the part of the informant or the journalist in relation to obtaining, using, giving or receiving information. (4) A person acting judicially must state the person's reasons for giving or refusing to give a direction. [Section 20J inserted: No. 31 of 2012 s. 5.] 20K. Effect of misconduct as to directions (1) In this section — misconduct, in relation to an informant or a journalist, includes any of the following — (a) an offence committed by the informant or journalist; (b) an act or omission on the part of the informant or journalist that renders him or her liable to a civil penalty; (c) deceit, dishonesty, inappropriate partiality or a breach of trust on the part of the informant or journalist; (d) the informant or journalist acting corruptly, or corruptly failing to act, in any capacity; (e) the informant or journalist corruptly taking advantage of his or her position to obtain a benefit for himself, herself or another person or to cause a detriment to another person; (f) the informant or journalist engaging in conduct that adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of any person in any capacity; (g) misuse, on the part of the informant or journalist, of information or material that he or she has acquired in any capacity, whether the misuse is to obtain a benefit for himself, herself or another person or to cause a detriment to another person; (h) conduct providing reasonable grounds for the termination of the informant or journalist's employment; (i) conduct providing reasonable grounds for disciplining the informant or journalist in relation to unsatisfactory professional conduct or professional misconduct, or the breach of a professional standard, in relation to the informant or journalist's profession, whether or not he or she is a member of the body that prescribed the standard. (2) A person acting judicially who finds that there was misconduct on the part of an informant or a journalist in relation to obtaining, using, giving or receiving information — (a) may, but is not bound to, give a direction; and (b) must have regard to the principles set out in subsection (3) when deciding whether or not to give a direction. (3) The principles mentioned in subsection (2)(b) are as follows — (a) that generally a direction should be given if — (i) the misconduct was the commission of