EVIDENCE ACT 1995 - NOTES

EVIDENCE ACT 1995 - NOTES

No. 2, 1995

Compilation No. 34

Compilation date: 1 September 2021

Includes amendments up to: Act No. 13, 2021

Registered: 2 November 202 1

About this compilation

This compilation

This is a compilation of the Evidence Act 1995 that shows the text of the law as amended and in force on 1 September 2021 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Chapter 1--Preliminary

Part 1.1--Formal matters

1  Short title

2  Commencement

3  Definitions

Part 1.2--Application of this Act

4  Courts and proceedings to which Act applies

5  Extended application of certain provisions

6  Territories

7  Act binds Crown

8  Operation of other Acts etc.

8A  Application of the Criminal Code

9  Effect of Act on other laws

10  Parliamentary privilege preserved

11  General powers of a court

Chapter 2--Adducing evidence

Part 2.1--Witnesses

Division 1--Competence and compellability of witnesses

12  Competence and compellability

13  Competence: lack of capacity

14  Compellability: reduced capacity

15  Compellability: Sovereign and others

16  Competence and compellability: judges and jurors

17  Competence and compellability: defendants in criminal proceedings

18  Compellability of spouses and others in criminal proceedings generally

20  Comment on failure to give evidence

Division 2--Oaths and affirmations

21  Sworn evidence of witnesses to be on oath or affirmation

22  Interpreters to act on oath or affirmation

23  Choice of oath or affirmation

24  Requirements for oaths

Division 3--General rules about giving evidence

26  Court's control over questioning of witnesses

27  Parties may question witnesses

28  Order of examination in chief, cross-examination and re-examination

29  Manner and form of questioning witnesses and their responses

30  Interpreters

31  Witnesses who cannot hear adequately or speak adequately

32  Attempts to revive memory in court

33  Evidence given by police officers

34  Attempts to revive memory out of court

35  Effect of calling for production of documents

36  Person may be examined without subpoena or other process

Division 4--Examination in chief and re-examination

37  Leading questions

38  Unfavourable witnesses

39  Limits on re-examination

Division 5--Cross-examination

40  Witness called in error

41  Improper questions

42  Leading questions

43  Prior inconsistent statements of witnesses

44  Previous representations of other persons

45  Production of documents

46  Leave to recall witnesses

Part 2.2--Documents

47  Definitions

48  Proof of contents of documents

49  Documents in foreign countries

50  Proof of voluminous or complex documents

51  Original document rule abolished

Part 2.3--Other evidence

52  Adducing of other evidence not affected

53  Views

54  Views to be evidence

Chapter 3--Admissibility of evidence

Part 3.1--Relevance

55  Relevant evidence

56  Relevant evidence to be admissible

57  Provisional relevance

58  Inferences as to relevance

Part 3.2--Hearsay

Division 1--The hearsay rule

59  The hearsay rule--exclusion of hearsay evidence

60  Exception: evidence relevant for a non-hearsay purpose

61  Exceptions to the hearsay rule dependent on competency

Division 2--First-hand hearsay

62  Restriction to "first-hand" hearsay

63  Exception: civil proceedings if maker not available

64  Exception: civil proceedings if maker available

65  Exception: criminal proceedings if maker not available

66  Exception: criminal proceedings if maker available

66A  Exception: contemporaneous statements about a person's health etc.

67  Notice to be given

68  Objections to tender of hearsay evidence in civil proceedings if maker available

Division 3--Other exceptions to the hearsay rule

69  Exception: business records

70  Exception: contents of tags, labels and writing

71  Exception: electronic communications

72  Exception: Aboriginal and Torres Strait Islander traditional laws and customs

73  Exception: reputation as to relationships and age

74  Exception: reputation of public or general rights

75  Exception: interlocutory proceedings

Part 3.3--Opinion

76  The opinion rule

77  Exception: evidence relevant otherwise than as opinion evidence

78  Exception: lay opinions

78A  Exception: Aboriginal and Torres Strait Islander traditional laws and customs

79  Exception: opinions based on specialised knowledge

80  Ultimate issue and common knowledge rules abolished

Part 3.4--Admissions

81  Hearsay and opinion rules: exception for admissions and related representations

82  Exclusion of evidence of admissions that is not first-hand

83  Exclusion of evidence of admissions as against third parties

84  Exclusion of admissions influenced by violence and certain other conduct

85  Criminal proceedings: reliability of admissions by defendants

86  Exclusion of records of oral questioning

87  Admissions made with authority

88  Proof of admissions

89  Evidence of silence

90  Discretion to exclude admissions

Part 3.5--Evidence of judgments and convictions

91  Exclusion of evidence of judgments and convictions

92  Exceptions

93  Savings

Part 3.6--Tendency and coincidence

94  Application

95  Use of evidence for other purposes

96  Failure to act

97  The tendency rule

98  The coincidence rule

99  Requirements for notices

100  Court may dispense with notice requirements

101  Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

Part 3.7--Credibility

Division 1--Credibility evidence

101A  Credibility evidence

Division 2--Credibility of witnesses

102  The credibility rule

103  Exception: cross-examination as to credibility

104  Further protections: cross-examination of accused

106  Exception: rebutting denials by other evidence

108  Exception: re-establishing credibility

Division 3--Credibility of persons who are not witnesses

108A  Admissibility of evidence of credibility of person who has made a previous representation

108B  Further protections: previous representations of an accused who is not a witness

Division 4--Persons with specialised knowledge

108C  Exception: evidence of persons with specialised knowledge

Part 3.8--Character

109  Application

110  Evidence about character of accused persons

111  Evidence about character of co-accused

112  Leave required to cross-examine about character of accused or co-accused

Part 3.9--Identification evidence

113  Application of Part

114  Exclusion of visual identification evidence

115  Exclusion of evidence of identification by pictures

116  Directions to jury

Part 3.10--Privileges

Division 1--Client legal privilege

117  Definitions

118  Legal advice

119  Litigation

120  Unrepresented parties

121  Loss of client legal privilege: generally

122  Loss of client legal privilege: consent and related matters

123  Loss of client legal privilege: defendants

124  Loss of client legal privilege: joint clients

125  Loss of client legal privilege: misconduct

126  Loss of client legal privilege: related communications and documents

Division 1C--Journalist privilege

126J  Definitions

126K  Journalist privilege relating to identity of informant

Division 2--Other privileges

127  Religious confessions

128  Privilege in respect of self-incrimination in other proceedings

128A  Privilege in respect of self-incrimination--exception for certain orders etc

Division 3--Evidence excluded in the public interest

129  Exclusion of evidence of reasons for judicial etc. decisions

130  Exclusion of evidence of matters of state

131  Exclusion of evidence of settlement negotiations

Division 4--General

131A  Extended application of Division 1C

131B  Extended application of Division 1C etc. to all proceedings for Commonwealth offences

132  Court to inform of rights to make applications and objections

133  Court may inspect etc. documents

134  Inadmissibility of evidence that must not be adduced or given

Part 3.11--Discretionary and mandatory exclusions

135  General discretion to exclude evidence

136  General discretion to limit use of evidence

137  Exclusion of prejudicial evidence in criminal proceedings

138  Discretion to exclude improperly or illegally obtained evidence

139  Cautioning of persons

Chapter 4--Proof

Part 4.1--Standard of proof

140  Civil proceedings: standard of proof

141  Criminal proceedings: standard of proof

142  Admissibility of evidence: standard of proof

Part 4.2--Judicial notice

143  Matters of law

144  Matters of common knowledge

145  Certain Crown certificates

Part 4.3--Facilitation of proof

Division 1--General

146  Evidence produced by processes, machines and other devices

147  Documents produced by processes, machines and other devices in the course of business

148  Evidence of certain acts of justices, lawyers and notaries public

149  Attestation of documents

150  Seals and signatures

151  Seals of bodies established under State law

152  Documents produced from proper custody

Division 2--Matters of official record

153  Gazettes and other official documents

154  Documents published by authority of Parliaments etc.

155  Evidence of official records

155A  Evidence of Commonwealth documents

156  Public documents

157  Public documents relating to court processes

158  Evidence of certain public documents

159  Official statistics

Division 3--Matters relating to post and communications

160  Postal articles

161  Electronic communications

162  Lettergrams and telegrams

163  Proof of letters having been sent by Commonwealth agencies

Part 4.4--Corroboration

164  Corroboration requirements abolished

Part 4.5--Warnings and information

165  Unreliable evidence

165A  Warnings in relation to children's evidence

165B  Delay in prosecution

Part 4.6--Ancillary provisions

Division 1--Requests to produce documents or call witnesses

166  Definition of request

167  Requests may be made about certain matters

168  Time limits for making certain requests

169  Failure or refusal to comply with requests

Division 2--Proof of certain matters by affidavits or written statements

170  Evidence relating to certain matters

171  Persons who may give such evidence

172  Evidence based on knowledge, belief or information

173  Notification of other parties

Division 3--Foreign law

174  Evidence of foreign law

175  Evidence of law reports of foreign countries

176  Questions of foreign law to be decided by judge

Division 4--Procedures for proving other matters

177  Certificates of expert evidence

178  Convictions, acquittals and other judicial proceedings

179  Proof of identity of convicted persons--affidavits by members of State or Territory police forces

180  Proof of identity of convicted persons--affidavits by AFP employees or special members of the Australian Federal Police

181  Proof of service of statutory notifications, notices, orders and directions

Chapter 5--Miscellaneous

182  Application of certain sections in relation to Commonwealth records, postal articles sent by Commonwealth agencies and certain Commonwealth documents

183  Inferences

184  Accused may admit matters and give consents

185  Faith and credit to be given to documents properly authenticated

186  Swearing of affidavits before justices of the peace, notaries public and lawyers

187  Abolition of the privilege against self-incrimination for bodies corporate

188  Impounding documents

189  The voir dire

190  Waiver of rules of evidence

191  Agreements as to facts

192  Leave, permission or direction may be given on terms

192A  Advance rulings and findings

193  Additional powers

195  Prohibited question not to be published

197  Regulations

Schedule--Oaths and Affirmations

Dictionary

Part 1--Definitions

Part 2--Other Expressions

1  References to businesses

2  References to examination in chief, cross-examination and re-examination

3  References to civil penalties

4  Unavailability of persons

5  Unavailability of documents and things

6  Representations in documents

7  Witnesses

8  References to documents

8A  References to offices etc.

9  References to laws

10  References to children and parents

11  References to de facto partners

Endnotes

Endnote 1--About the endnotes

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history

  INTRODUCTORY NOTE

  Outline of this Act

  This Act sets out the federal rules of evidence. Generally speaking, the Act applies to proceedings in federal courts (see section  4), but some provisions extend beyond such proceedings (see Note 2 to subsection 4(1)).

  Chapter 2 is about how evidence is adduced in proceedings.

  Chapter 3 is about admissibility of evidence in proceedings.

  Chapter 4 is about proof of matters in proceedings.

  Chapter 5 deals with miscellaneous matters.

  The Dictionary at the end of this Act defines terms and expressions used in this Act.

  Related legislation

  This Act is in most respects uniform with the following State and Territory Acts:

(a) the Evidence Act 1995 (NSW);

(b) the Evidence Act 2001 (Tas.);

(c) the Evidence Act 2008 (Vic.);

(d) the Evidence Act 2011 (ACT);

(e) the Evidence (National Uniform Legislation) Act 2011 (NT).

  While these Acts are in most respects identical to this Act, there are differences. The explanatory memorandum to the Civil Law and Justice Legislation Amendment Bill 2014 includes a table setting out the differences as at 8  July 2014. An updated version of the table is maintained by the Attorney -General's Department on its website (http://www.ag.gov.au).

Endnotes

Endnote 1--About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1--About the endnotes

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history

Abbreviation key--Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history--Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation "(md)" added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation "(md not incorp)" is added to the details of the amendment included in the amendment history.

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history