New South Wales Consolidated Acts

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EVIDENCE ACT 1995

- As at 1 July 2015
- Act 25 of 1995

TABLE OF PROVISIONS

           Long Title

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
   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
           SCHEDULE 1
           SCHEDULE 2
           Dictionary


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