EVIDENCE ACT 1995 - As at 19 October 2022 - Act 25 of 1995
- As at 19 October 2022
- Act 25 of 1995
Table of Provisions
CHAPTER 1 - PRELIMINARY
Note
PART 1.1 - FORMAL MATTERS
- 1 Name of Act
- 2 Commencement
- 3 Definitions
PART 1.2 - APPLICATION OF THIS ACT
- 4 Courts and proceedings to which Act applies
- 5 Extended application of certain provisions
- 6 Territories
- 7 Act binds Crown
- 8 Operation of other Acts
- 9 Application of common law and equity
- 10 Parliamentary privilege preserved
- 11 General powers of a court
CHAPTER 2 - ADDUCING EVIDENCE
Note
PART 2.1 - WITNESSES
Division 1 - Competence and compellability of witnesses
- 12 Competence and compellability
- 13 Competence: lack of capacity
- 14 Compellability: reduced capacity
- 15 Compellability: Sovereign and others
- 16 Competence and compellability: judges and jurors
- 17 Competence and compellability: defendants in criminal proceedings
- 18 Compellability of spouses and others in criminal proceedings generally
- 19 Compellability of spouses and others in certain criminal proceedings
- 20 Comment on failure to give evidence
Division 2 - Oaths and affirmations
- 21 Sworn evidence to be on oath or affirmation
- 22 Interpreters to act on oath or affirmation
- 23 Choice of oath or affirmation
- 24 Requirements for oaths
- 24A Alternative oath
- 25 Rights to make unsworn statements unaffected
Division 3 - General rules about giving evidence
- 26 Court's control over questioning of witnesses
- 27 Parties may question witnesses
- 28 Order of examination in chief, cross-examination and re-examination
- 29 Manner and form of questioning witnesses and their responses
- 30 Interpreters
- 31 Deaf and mute witnesses
- 32 Attempts to revive memory in court
- 33 Evidence given by police officers
- 34 Attempts to revive memory out of court
- 35 Effect of calling for production of documents
- 36 Person may be examined without subpoena or other process
Division 4 - Examination in chief and re-examination
- 37 Leading questions
- 38 Unfavourable witnesses
- 39 Limits on re-examination
Division 5 - Cross-examination
- 40 Witness called in error
- 41 Improper questions
- 42 Leading questions
- 43 Prior inconsistent statements of witnesses
- 44 Previous representations of other persons
- 45 Production of documents
- 46 Leave to recall witnesses
PART 2.2 - DOCUMENTS
- 47 Definitions
- 48 Proof of contents of documents
- 49 Documents in foreign countries
- 50 Proof of voluminous or complex documents
- 51 Original document rule abolished
PART 2.3 - OTHER EVIDENCE
- 52 Adducing of other evidence not affected
- 53 Views
- 54 Views to be evidence
CHAPTER 3 - ADMISSIBILITY OF EVIDENCE
Note
PART 3.1 - RELEVANCE
- 55 Relevant evidence
- 56 Relevant evidence to be admissible
- 57 Provisional relevance
- 58 Inferences as to relevance
PART 3.2 - HEARSAY
Division 1 - The hearsay rule
- 59 The hearsay rule--exclusion of hearsay evidence
- 60 Exception: evidence relevant for a non-hearsay purpose
- 61 Exceptions to the hearsay rule dependent on competency
Division 2 - "First-hand" hearsay
- 62 Restriction to "first-hand" hearsay
- 63 Exception: civil proceedings if maker not available
- 64 Exception: civil proceedings if maker available
- 65 Exception: criminal proceedings if maker not available
- 66 Exception: criminal proceedings if maker available
- 66A Exception: contemporaneous statements about a person's health etc
- 67 Notice to be given
- 68 Objections to tender of hearsay evidence in civil proceedings if maker available
Division 3 - Other exceptions to the hearsay rule
- 69 Exception: business records
- 70 Exception: contents of tags, labels and writing
- 71 Exception: electronic communications
- 72 Exception: Aboriginal and Torres Strait Islander traditional laws and customs
- 73 Exception: reputation as to relationships and age
- 74 Exception: reputation of public or general rights
- 75 Exception: interlocutory proceedings
PART 3.3 - OPINION
- 76 The opinion rule
- 77 Exception: evidence relevant otherwise than as opinion evidence
- 78 Exception: lay opinions
- 78A Exception: Aboriginal and Torres Strait Islander traditional laws and customs
- 79 Exception: opinions based on specialised knowledge
- 80 Ultimate issue and common knowledge rules abolished
PART 3.4 - ADMISSIONS
Note
- 81 Hearsay and opinion rules: exception for admissions and related representations
- 82 Exclusion of evidence of admissions that is not first-hand
- 83 Exclusion of evidence of admissions as against third parties
- 84 Exclusion of admissions influenced by violence and certain other conduct
- 85 Criminal proceedings: reliability of admissions by defendants
- 86 Exclusion of records of oral questioning
- 87 Admissions made with authority
- 88 Proof of admissions
- 89 Evidence of silence generally
- 89A Evidence of silence in criminal proceedings for serious indictable offences
- 90 Discretion to exclude admissions
PART 3.5 - EVIDENCE OF JUDGMENTS AND CONVICTIONS
- 91 Exclusion of evidence of judgments and convictions
- 92 Exceptions
- 93 Savings
PART 3.6 - TENDENCY AND COINCIDENCE
- 94 Application
- 95 Use of evidence for other purposes
- 96 Failure to act
- 97 The tendency rule
- 97A Admissibility of tendency evidence in proceedings involving child sexual offences
- 98 The coincidence rule
- 99 Requirements for notices
- 100 Court may dispense with notice requirements
- 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
PART 3.7 - CREDIBILITY
Division 1 - Credibility evidence
- 101A Credibility evidence
Division 2 - Credibility of witnesses
- 102 The credibility rule
- 103 Exception: cross-examination as to credibility
- 104 Further protections: cross-examination as to credibility
- 105 Further protections: defendants making unsworn statements
- 106 Exception: rebutting denials by other evidence
107. (Repealed)
- 108 Exception: re-establishing credibility
Division 3 - Credibility of persons who are not witnesses
- 108A Admissibility of evidence of credibility of person who has made a previous representation
- 108B Further protections: previous representations of an accused who is not a witness
Division 4 - Persons with specialised knowledge
- 108C Exception: evidence of persons with specialised knowledge
PART 3.8 - CHARACTER
- 109 Application
- 110 Evidence about character of accused persons
- 111 Evidence about character of co-accused
- 112 Leave required to cross-examine about character of accused or co-accused
PART 3.9 - IDENTIFICATION EVIDENCE
Note
- 113 Application of Part
- 114 Exclusion of visual identification evidence
- 115 Exclusion of evidence of identification by pictures
- 116 Directions to jury
PART 3.10 - PRIVILEGES
Division 1 - Client legal privilege
- 117 Definitions
- 118 Legal advice
- 119 Litigation
- 120 Unrepresented parties
- 121 Loss of client legal privilege: generally
- 122 Loss of client legal privilege: consent and related matters
- 123 Loss of client legal privilege: defendants
- 124 Loss of client legal privilege: joint clients
- 125 Loss of client legal privilege: misconduct
- 126 Loss of client legal privilege: related communications and documents
Division 1A - Professional confidential relationship privilege
- 126A Definitions
- 126B Exclusion of evidence of protected confidences
- 126C Loss of professional confidential relationship privilege: consent
- 126D Loss of professional confidential relationship privilege: misconduct
- 126E Ancillary orders
- 126F Application of Division
Division 1B - Sexual assault communications privilege
Note
- 126G Definitions
- 126H Exclusion of evidence of protected sexual assault communications
- 126I Application of Division
Division 1C - Journalist privilege
- 126J Definitions
- 126K Journalist privilege relating to identity of informant
- 126L Application of Division
Division 2 - Other privileges
- 127 Religious confessions
- 128 Privilege in respect of self-incrimination in other proceedings
- 128A Privilege in respect of self-incrimination--exception for certain orders etc
Division 3 - Evidence excluded in the public interest
- 129 Exclusion of evidence of reasons for judicial etc decisions
- 130 Exclusion of evidence of matters of state
- 131 Exclusion of evidence of settlement negotiations
Division 4 - General
- 131A Application of Part to preliminary proceedings of courts
- 132 Court to inform of rights to make applications and objections
- 133 Court may inspect etc documents
- 134 Inadmissibility of evidence that must not be adduced or given
PART 3.11 - DISCRETIONARY AND MANDATORY EXCLUSIONS
- 135 General discretion to exclude evidence
- 136 General discretion to limit use of evidence
- 137 Exclusion of prejudicial evidence in criminal proceedings
- 138 Exclusion of improperly or illegally obtained evidence
- 139 Cautioning of persons
CHAPTER 4 - PROOF
Note
PART 4.1 - STANDARD OF PROOF
- 140 Civil proceedings: standard of proof
- 141 Criminal proceedings: standard of proof
- 142 Admissibility of evidence: standard of proof
PART 4.2 - JUDICIAL NOTICE
- 143 Matters of law
- 144 Matters of common knowledge
- 145 Certain Crown certificates
PART 4.3 - FACILITATION OF PROOF
Division 1 - General
- 146 Evidence produced by processes, machines and other devices
- 147 Documents produced by processes, machines and other devices in the course of business
- 148 Evidence of certain acts of justices, Australian lawyers and notaries public
- 149 Attestation of documents
- 150 Seals and signatures
- 151 Seals of bodies established under State law
- 152 Documents produced from proper custody
Division 2 - Matters of official record
- 153 Gazettes and other official documents
- 154 Documents published by authority of Parliaments etc
- 155 Evidence of official records
- 155A Evidence of Commonwealth documents
- 156 Public documents
- 157 Public documents relating to court processes
- 158 Evidence of certain public documents
- 159 Official statistics
Division 3 - Matters relating to post and communications
- 160 Postal articles
- 161 Electronic communications
- 162 Lettergrams and telegrams
- 163 Proof of letters having been sent by Commonwealth agencies
PART 4.4 - CORROBORATION
- 164 Corroboration requirements abolished
PART 4.5 - WARNINGS AND INFORMATION
- 165 Unreliable evidence
- 165A Warnings in relation to children's evidence
- 165B Delay in prosecution
PART 4.6 - ANCILLARY PROVISIONS
Division 1 - Requests to produce documents or call witnesses
Note
- 166 Definition of request
- 167 Requests may be made about certain matters
- 168 Time limits for making certain requests
- 169 Failure or refusal to comply with requests
Division 2 - Proof of certain matters by affidavits or written statements
Note
- 170 Evidence relating to certain matters
- 171 Persons who may give such evidence
- 172 Evidence based on knowledge, belief or information
- 173 Notification of other parties
Division 3 - Foreign law
- 174 Evidence of foreign law
- 175 Evidence of law reports of foreign countries
- 176 Questions of foreign law to be decided by judge
Division 4 - Procedures for proving other matters
- 177 Certificates of expert evidence
- 178 Convictions, acquittals and other judicial proceedings
- 179 Proof of identity of convicted persons--affidavits by members of State or Territory police forces
- 180 Proof of identity of convicted persons--affidavits by members of Australian Federal Police
- 181 Proof of service of statutory notifications, notices, orders and directions
CHAPTER 5 - MISCELLANEOUS
- 182 Application of certain sections in relation to Commonwealth records
- 183 Inferences
- 184 Accused may admit matters and give consents
- 185 Full faith and credit to be given to documents properly authenticated
- 186 Swearing of affidavits before justices of the peace, notaries public and lawyers
- 187 No privilege against self-incrimination for bodies corporate
- 188 Impounding documents
- 189 The voir dire
- 190 Waiver of rules of evidence
- 191 Agreements as to facts
- 192 Leave, permission or direction may be given on terms
- 192A Advance rulings and findings
- 193 Additional powers
- 194 Witnesses failing to attend proceedings
- 195 Prohibited question not to be published
- 196 Proceedings for offences
- 197 Regulations
- 198 Savings, transitional and other provisions