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EVIDENCE ACT 1995 - NOTES
DICTIONARY Section 3
PART 1-DEFINITIONS
ACT court means the Supreme Court of the Australian Capital Territory
or any other court of the Australian Capital Territory, and includes a
person or body that, in performing a function or exercising a power
under a law of the Australian Capital Territory, is required to apply
the laws of evidence.
Note: The NSW Act does not include this definition.
admission means a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding
(including a defendant in a criminal proceeding); and
(b) adverse to the person's interest in the outcome of the
proceeding.
asserted fact is defined in section 59.
associated defendant, in relation to a defendant in a criminal
proceeding, means a person against whom a prosecution has been
instituted, but not yet completed or terminated, for:
(a) an offence that arose in relation to the same events as those in
relation to which the offence for which the defendant is being
prosecuted arose; or
(b) an offence that relates to or is connected with the offence for
which the defendant is being prosecuted.
Australia includes the external Territories.
Australian court means:
(a) the High Court; or
(b) a court exercising federal jurisdiction; or
(c) a court of a State or Territory; or
(d) a judge, justice or arbitrator under an Australian law; or
(e) a person or body authorised by an Australian law, or by consent
of parties, to hear, receive and examine evidence; or
(f) a person or body that, in exercising a function under an
Australian law, is required to apply the laws of evidence.
Australian law means a law of the Commonwealth, a State or a
Territory.
Note: See clause 9 of Part 2 of the Dictionary for the meaning of law.
Australian or overseas proceeding means a proceeding (however
described) in an Australian court or a foreign court.
Australian Parliament means the Parliament, a Parliament of a State
or a Legislative Assembly of a Territory.
Australian Statistician means the Australian Statistician referred to
in subsection 5(2) of the Australian Bureau of Statistics Act 1975, and
includes any person to whom the powers of the Australian Statistician
under section 12 of the Census and Statistics Act 1905 have been
delegated.
business is defined in clause 1 of Part 2 of this Dictionary.
case of a party means the facts in issue in respect of which the
party bears the legal burden of proof.
child means a child of any age and includes the meaning given in
subclause 10(1) of Part 2 of this Dictionary.
civil penalty is defined in clause 3 of Part 2 of this Dictionary.
civil proceeding means a proceeding other than a criminal proceeding.
client is defined in section 117.
coincidence evidence means evidence of a kind referred to in
subsection 98(1) that a party seeks to have adduced for the purpose
referred to in that subsection.
coincidence rule means subsection 98(1).
Commonwealth owned body corporate means a body corporate that, were
the Commonwealth a body corporate, would, for the purposes of the
Corporations Law, be:
(a) a wholly-owned subsidiary of the Commonwealth; or
(b) a wholly-owned subsidiary of another body corporate that is,
under this definition, a Commonwealth owned body corporate because of
the application of paragraph (a) (including the application of that
paragraph together with another application or other applications of
this paragraph).
Commonwealth record means a record made by:
(a) a Department within the meaning of the Public Service Act 1922;
or
(b) the Parliament, a House of the Parliament, a committee of a House
of the Parliament or a committee of the Parliament; or
(c) a person or body other than a Legislative Assembly holding
office, or exercising power, under or because of the Constitution or a
law of the Commonwealth;
or
(d) a body or organisation other than a Legislative Assembly, whether
incorporated or unincorporated, established for a public purpose:
(i) by or under a law of the Commonwealth or of a Territory (other
than the Australian Capital Territory, the Northern Territory or
Norfolk Island);
or
(ii) by the Governor-General; or
(iii) by a Minister; or
(e) any other body or organisation that is a Commonwealth owned body
corporate; and kept or maintained by a person, body or organisation of
a kind referred to in paragraph (a), (b), (c), (d) or (e), but does not
include a record made by a person or body holding office, or exercising
power, under or because of the Constitution or a law of the
Commonwealth if the record was not made in connection with holding the
office concerned, or exercising the power concerned.
confidential communication is defined in section 117.
confidential document is defined in section 117.
credibility of a witness means the credibility of any part or all of
the evidence of the witness, and includes the witness's ability to
observe or remember facts and events about which the witness has given,
is giving or is to give evidence.
credibility rule means section 102.
criminal proceeding means a prosecution for an offence and includes:
(a) a proceeding for the committal of a person for trial or sentence
for an offence; and
(b) a proceeding relating to bail;
but does not include a prosecution for an offence that is a prescribed
taxation offence within the meaning of Part III of the Taxation
Administration Act 1953.
cross-examination is defined in subclause 2(2) of Part 2 of this
Dictionary.
cross-examiner means a party who is cross-examining a witness.
de facto spouse:
(a) of a man, means a woman who is living with the man as his wife on
a genuine domestic basis although not married to him; and
(b) of a woman, means a man who is living with the woman as her
husband on a genuine domestic basis although not married to her.
document means any record of information, and includes:
(a) anything on which there is writing; or
(b) anything on which there are marks, figures, symbols or
perforations having a meaning for persons qualified to interpret them;
or
(c) anything from which sounds, images or writings can be reproduced
with or without the aid of anything else; or
(d) a map, plan, drawing or photograph.
Note: See also clause 8 of Part 2 of this Dictionary on the meaning of
document.
examination in chief is defined in subclause 2(1) of Part 2 of this
Dictionary.
exercise of a function includes performance of a duty.
fax, in relation to a document, means a copy of the document that has
been reproduced by facsimile telegraphy.
federal court means:
(a) the High Court; or
(b) any other court created by the Parliament (other than the Supreme
Court of a Territory);
and includes a person or body (other than a court or magistrate of a
State or Territory) that, in performing a function or exercising a
power under a law of the Commonwealth, is required to apply the laws of
evidence.
Note: The NSW Act does not include this definition.
foreign court means any court (including any person or body
authorised to take or receive evidence, whether on behalf of a court or
otherwise and whether or not the person or body is empowered to require
the answering of questions or the production of documents) of a foreign
country or a part of such a country.
function includes power, authority or duty.
government or official gazette includes the Gazette.
Note: The NSW Act includes definitions of "Governor" and
"Governor-General".
These definitions are not included in this Act because they are
covered by sections 16A and 16B of the Acts Interpretation Act 1901.
hearsay rule means subsection 59(1).
identification evidence means evidence that is:
(a) an assertion by a person to the effect that a defendant was, or
resembles (visually, aurally or otherwise) a person who was, present at
or near a place where:
(i) the offence for which the defendant is being prosecuted was
committed;
or
(ii) an act connected to that offence was done;
at or about the time at which the offence was committed or
the act was done, being an assertion that is based wholly or partly
on what the person making the assertion saw or heard at that place and
time; or
(b) a report (whether oral or in writing) of such an assertion.
investigating official means:
(a) a police officer (other than a police officer who is engaged in
covert investigations under the orders of a superior); or
(b) a person appointed by or under an Australian law (other than a
person who is engaged in covert investigations under the orders of a
superior) whose functions include functions in respect of the
prevention or investigation of offences.
joint sitting means:
(a) in relation to the Parliament-a joint sitting of the members of
the Senate and of the House of Representatives convened by the
Governor-General under section 57 of the Constitution or convened under
any Act; or
(b) in relation to a bicameral legislature of a State-a joint
sitting of both Houses of the legislature convened under a law of the
State.
judge, in relation to a proceeding, means the judge, magistrate or
other person before whom the proceeding is being held.
law is defined in clause 9 of Part 2 of this Dictionary.
lawyer means a barrister or solicitor.
leading question means a question asked of a witness that:
(a) directly or indirectly suggests a particular answer to the
question;
or
(b) assumes the existence of a fact the existence of which is in
dispute in the proceeding and as to the existence of which the witness
has not given evidence before the question is asked.
Legislative Assembly means any present or former Legislative Assembly
of a Territory, and includes the Australian Capital Territory House of
Assembly.
member of the Australian Federal Police includes a special member or
a staff member of the Australian Federal Police.
Note: The NSW Act includes a definition of "NSW court".
offence means an offence against or arising under an Australian law.
official questioning means questioning by an investigating official
in connection with the investigation of the commission or possible
commission of an offence.
opinion rule means section 76.
parent includes the meaning given in subclause 10(2) of Part 2 of
this Dictionary.
picture identification evidence is defined in section 115.
police officer means:
(a) a member of the Australian Federal Police; or
(b) a member of the police force of a State or Territory.
postal article has the same meaning as in the Australian Postal
Corporation Act 1989.
previous representation means a representation made otherwise than in
the course of giving evidence in the proceeding in which evidence of
the representation is sought to be adduced.
prior consistent statement of a witness means a previous
representation that is consistent with evidence given by the witness.
prior inconsistent statement of a witness means a previous
representation that is inconsistent with evidence given by the witness.
probative value of evidence means the extent to which the evidence
could rationally affect the assessment of the probability of the
existence of a fact in issue.
public document means a document that:
(a) forms part of the records of the Crown in any of its capacities; or
(b) forms part of the records of the government of a foreign country; or
(c) forms part of the records of a person or body holding office or
exercising a function under or because of the Constitution, an
Australian law or a law of a foreign country; or
(d) is being kept by or on behalf of the Crown, such a government or
such a person or body;
and includes the records of the proceedings of, and papers presented to:
(e) an Australian Parliament, a House of an Australian Parliament, a
committee of such a House or a committee of an Australian Parliament; and
(f) a legislature of a foreign country, including a House or committee
(however described) of such a legislature.
re-examination is defined in subclauses 2(3) and (4) of Part 2 of
this Dictionary.
representation includes:
(a) an express or implied representation (whether oral or in
writing);
or
(b) a representation to be inferred from conduct; or
(c) a representation not intended by its maker to be communicated to
or seen by another person; or
(d) a representation that for any reason is not communicated.
seal includes a stamp.
tendency evidence means evidence of a kind referred to in subsection
97(1) that a party seeks to have adduced for the purpose referred to in
that subsection.
tendency rule means subsection 97(1).
visual identification evidence is defined in section 114.
witness includes the meaning given in clause 7 of Part 2 of this
Dictionary.
PART 2-OTHER EXPRESSIONS
References to businesses
1. (1) A reference in this Act to a business includes a reference to
the following:
(a) a profession, calling, occupation, trade or undertaking;
(b) an activity engaged in or carried on by the Crown in any of its
capacities;
(c) an activity engaged in or carried on by the government of a
foreign country;
(d) an activity engaged in or carried on by a person holding office
or exercising power under or because of the Constitution, an Australian
law or a law of a foreign country, being an activity engaged in or
carried on in the performance of the functions of the office or in the
exercise of the power
(otherwise than in a private capacity);
(e) the proceedings of an Australian Parliament, a House of an
Australian Parliament, a committee of such a House or a committee of an
Australian Parliament;
(f) the proceedings of a legislature of a foreign country, including
a House or committee (however described) of such a legislature.
(2) A reference in this Act to a business also includes a reference
to:
(a) a business that is not engaged in or carried on for profit; or
(b) a business engaged in or carried on outside Australia.
References to examination in chief, cross-examination and
re-examination
2. (1) A reference in this Act to examination in chief of a witness
is a reference to the questioning of a witness by the party who called
the witness to give evidence, not being questioning that is
re-examination.
(2) A reference in this Act to cross-examination of a witness is a
reference to the questioning of a witness by a party other than the
party who called the witness to give evidence.
(3) A reference in this Act to re-examination of a witness is a
reference to the questioning of a witness by the party who called the
witness to give evidence, being questioning (other than further
examination in chief with the leave of the court) conducted after the
cross-examination of the witness by another party.
(4) If a party has recalled a witness who has already given evidence,
a reference in this Act to re-examination of a witness does not include
a reference to the questioning of the witness by that party before the
witness is questioned by another party.
References to civil penalties
3. For the purposes of this Act, a person is taken to be liable to a
civil penalty if, in an Australian or overseas proceeding (other than a
criminal proceeding), the person would be liable to a penalty arising
under an Australian law or a law of a foreign country.
Unavailability of persons
4. (1) For the purposes of this Act, a person is taken not to be
available to give evidence about a fact if:
(a) the person is dead; or
(b) the person is, for any reason other than the application of
section 16 (Competence and compellability: judges and jurors), not
competent to give the evidence about the fact; or
(c) it would be unlawful for the person to give evidence about the
fact; or
(d) a provision of this Act prohibits the evidence being given; or
(e) all reasonable steps have been taken, by the party seeking to
prove the person is not available, to find the person or to secure his
or her attendance, but without success; or
(f) all reasonable steps have been taken, by the party seeking to
prove the person is not available, to compel the person to give the
evidence, but without success.
(2) In all other cases the person is taken to be available to give
evidence about the fact.
Unavailability of documents and things
5. For the purposes of this Act, a document or thing is taken not to
be available to a party if and only if:
(a) it cannot be found after reasonable inquiry and search by the
party; or
(b) it was destroyed by the party, or by a person on behalf of the
party, otherwise than in bad faith, or was destroyed by another person;
or
(c) it would be impractical to produce the document or thing during
the course of the proceeding; or
(d) production of the document or thing during the course of the
proceeding could render a person liable to conviction for an offence;
or
(e) it is not in the possession or under the control of the party
and:
(i) it cannot be obtained by any judicial procedure of the court;
or
(ii) it is in the possession or under the control of another party
to the proceeding concerned who knows or might reasonably be expected
to know that evidence of the contents of the document, or evidence of
the thing, is likely to be relevant in the proceeding; or
(iii) it was in the possession or under the control of such a
party at a time when that party knew or might reasonably be expected to
have known that such evidence was likely to be relevant in the
proceeding.
Representations in documents
6. For the purposes of this Act, a representation contained in a
document is taken to have been made by a person if:
(a) the document was written, made or otherwise produced by the
person;
or
(b) the representation was recognised by the person as his or her
representation by signing, initialling or otherwise marking the
document.
Witnesses
7. (1) A reference in this Act to a witness includes a reference to a
party giving evidence.
(2) A reference in this Act to a witness who has been called by a
party to give evidence includes a reference to the party giving
evidence.
(3) A reference in this section to a party includes a defendant in a
criminal proceeding.
References to documents
8. A reference in this Act to a document includes a reference to:
(a) any part of the document; or
(b) any copy, reproduction or duplicate of the document or of any
part of the document; or
(c) any part of such a copy, reproduction or duplicate.
References to laws
9. (1) A reference in this Act to a law of the Commonwealth, a State,
a Territory or a foreign country is a reference to a law (whether
written or unwritten) of or in force in that place.
(2) A reference in this Act to an Australian law is a reference to an
Australian law (whether written or unwritten) of or in force in
Australia.
References to children and parents
10. (1) A reference in this Act to a child of a person includes a
reference to:
(a) an adopted child and an ex-nuptial child of the person; or
(b) a child living with the person as if the child were a member of
the person's family.
(2) A reference in this Act to a parent of a person includes a
reference to:
(a) an adoptive parent of the person; or
(b) if the person is an ex-nuptial child-the person's natural
father;
or
(c) the person with whom a child is living as if the child were a
member of the person's family.