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EVIDENCE ACT 1977 - As at 19 February 2024 - Act 47 of 1977

- As at 19 February 2024 - Act 47 of 1977

Table of Provisions

PART 1 - PRELIMINARY

PART 2 - WITNESSES

Division 1 - Who may testify

  • 6 Witnesses interested or convicted of offence
  • 7 Parties, their wives and husbands as witnesses
  • 8 Witnesses in a criminal proceeding

Division 1A - Competency of witnesses and capacity to be sworn

  • 9 Presumption as to competency
  • 9A Competency to give evidence
  • 9B Competency to give sworn evidence
  • 9C Expert evidence about witness’s ability to give evidence
  • 9D Evidence admitted under s 9A

Division 1B - Special provisions for child witnesses

  • 9E Principles for dealing with a child witness

Division 2 - Privileges and obligations of witnesses

  • 10 Privilege against self-incrimination
  • 11. (Repealed)
  • 12 Admissibility of evidence as to access by husband or wife
  • 13 Compellability of parties and witnesses as to evidence of adultery
  • 14 Abolition of certain privileges

Division 2A - Sexual assault counselling privilege

Subdivision 1 - Preliminary
  • 14A Meaning of protected counselling communication
  • 14B Other definitions for division
  • Subdivision 2 - Committal and bail proceedings
  • 14C Application of subdivision
  • 14D Sexual assault counselling privilege
  • Subdivision 3 - Other proceedings
  • 14E Application of subdivision
  • 14F Sexual assault counselling privilege
  • 14G Application for leave
  • 14H Deciding whether to grant leave
  • Subdivision 4 - Waiver or loss of privilege
  • 14I Waiver of privilege by counselled person
  • 14J Loss of privilege if communication made in commission of offence
  • Subdivision 5 - General provisions
  • 14K Court to inform of rights
  • 14L Standing of counsellor and counselled person
  • 14M Deciding whether document or evidence is protected counselling communication
  • 14N Ancillary orders
  • 14O Application of division despite Justices Act 1886
  • 14P Application of privilege in civil proceedings

Division 2B - Journalist privilege

Subdivision 1 - Preliminary
  • 14Q Application of division
  • 14R Who is a journalist
  • 14S Meaning of relevant proceeding
  • 14T Definitions for division
  • Subdivision 2 - Relevant proceedings
  • 14U Application of subdivision
  • 14V Journalist privilege relating to identity of informants
  • 14W Claims of journalist privilege at hearings of relevant proceedings
  • 14X Applications for orders requiring giving of evidence despite journalist privilege
  • 14Y Deciding applications under s 14X
  • 14Z Objections to disclosure requirements on grounds of journalist privilege
  • 14ZA Other orders court may make
  • 14ZB Court to inform of particular rights
  • Subdivision 3 - Search warrants
  • 14ZC Application of subdivision
  • 14ZD Procedures if objections made
  • 14ZE Applications to Supreme Court in relation to objections
  • 14ZF Decisions on applications
  • 14ZG Other orders court may make

Division 3 - Examination and cross-examination of witnesses

  • 15 Questioning a person charged in a criminal proceeding
  • 15A Questioning of witness as to certain convictions
  • 16 Witness may be questioned as to previous conviction
  • 17 How far a party may discredit the party’s own witness
  • 18 Proof of previous inconsistent statement of witness
  • 19 Witness may be cross-examined as to written statement without being shown it
  • 20 Cross-examination as to credit
  • 21 Improper questions

Division 4 - Evidence of special witnesses

  • 21A Evidence of special witnesses
  • 21AAA Exclusion of particular persons while particular evidence is presented

Division 4A - Evidence of affected children

Subdivision 1 - Preliminary
  • 21AA Purposes of div 4A
  • 21AB How purposes are to be achieved
  • 21AC Definitions for div 4A
  • 21AD Meaning of child
  • Subdivision 2 - Committal proceeding
  • 21AE Application of sdiv 2
  • 21AF Evidence-in-chief
  • 21AG Cross-examination
  • 21AH Limitation on cross-examination
  • Subdivision 3 - Prerecording of affected child’s evidence
  • 21AI Application of sdiv 3
  • 21AJ Presentation of indictment
  • 21AK Videorecording of affected child’s evidence
  • 21AL Court to give directions for taking an affected child’s evidence
  • 21AM Use of prerecorded evidence
  • 21AN Giving of further evidence
  • 21AO Court order that evidence not to be taken and recorded under this sdiv
  • Subdivision 4 - Taking of affected child’s evidence using audio visual link or screen
  • 21AP Application of sdiv 4
  • 21AQ Audio visual links or screening arrangements must be used
  • 21AR Court may order that s 21AQ does not apply
  • Subdivision 5 - General
  • 21AS Prosecutor or applicant to advise that an affected child is to give evidence
  • 21AT Identification of persons or things by affected child
  • 21AU Exclusion of public
  • 21AV Affected child entitled to support
  • 21AW Instructions to be given to jury
  • 21AX Orders, directions and rulings concerning affected child witnesses

Division 4AA - Use of soundtracks from particular videorecordings

  • 21AXA Definition for division
  • 21AXB Meaning of usable soundtrack
  • 21AXC Court may make order for presentation of usable soundtrack
  • 21AXD Use of usable soundtrack

Division 4B - Dealings with, and destruction of, recordings

Subdivision 1 - Preliminary
  • 21AY Definitions for div 4B
  • Subdivision 2 - Dealings with recordings
  • 21AZ Approval to edit or otherwise change a recording
  • 21AZA Court to give directions about the use or safekeeping of a recording
  • 21AZB Unauthorised possession of, or dealing with, recording
  • 21AZC Publishing a recording prohibited
  • Subdivision 3 - Destruction of recordings
  • 21AZD Relationship with other Acts
  • 21AZE Making of practice directions authorising destruction
  • 21AZF Court may make order about destruction
  • 21AZG Destruction of particular digital recordings
  • 21AZH Delegation by principal registrar

Division 4C - Intermediaries

Subdivision 1 - Preliminary
  • 21AZI Definitions for division
  • 21AZJ Meaning of relevant proceeding
  • 21AZK References to particular matters
  • Subdivision 2 - Appointment and functions
  • 21AZL Appointment
  • 21AZM Functions
  • 21AZN Oath before performing particular functions
  • Subdivision 3 - Directions hearings
  • 21AZO Application of subdivision
  • 21AZP Directions for holding directions hearings
  • 21AZQ Attendance at directions hearing
  • 21AZR Functions of intermediary at directions hearing
  • 21AZS Court may give directions
  • Subdivision 4 - Giving of evidence and jury instructions
  • 21AZT Way evidence of witness to be given
  • 21AZU Instructions to be given to jury
  • Subdivision 5 - Intermediaries panel
  • 21AZV Chief executive to establish intermediaries panel
  • 21AZW Removal of person from intermediaries panel
  • 21AZX Criminal history report
  • 21AZY Confidentiality of criminal history information

Division 5 - Witness identity protection

Subdivision 1 - Preliminary
  • 21B Purposes of div 5
  • 21C Definitions for div 5
  • 21D Application of div 5 to lawyer of party to a proceeding
  • Subdivision 2 - Witness identity protection certificates for operatives
  • 21E Application of sdiv 2
  • 21F Giving witness identity protection certificate
  • 21G Form of witness identity protection certificate
  • 21H Filing and notification
  • 21I Effect of witness identity protection certificate
  • 21J Orders to protect operative’s identity etc.
  • 21K Disclosure of operative’s identity etc. despite certificate
  • 21KA Directions to jury
  • 21KB Witness identity protection certificate—cancellation
  • 21KC Permission to give information disclosing operative’s identity etc.
  • 21KD Disclosure offences
  • 21KE Review of giving of witness identity protection certificate by police service
  • 21KF Giving information about witness identity protection certificates
  • 21KG Report about witness identity protection certificates
  • 21KH Recognition of witness identity protection certificates under corresponding laws
  • Subdivision 3 - General
  • 21KI Delegation

Division 6 - Cross-examination of protected witnesses

  • 21L Application of division 6
  • 21M Meaning of protected witness
  • 21N No cross-examination of protected witness by person charged
  • 21O Procedure for cross-examination of protected witness if person charged has no legal representative
  • 21P Legal assistance for cross-examination of protected witness
  • 21Q Satisfaction of Criminal Code, section 616
  • 21R Jury direction
  • 21S Orders, directions and rulings concerning protected witnesses

PART 3 - MEANS OF OBTAINING EVIDENCE

Division 1 - Commissions, requests and orders to examine witnesses

  • 22 Commission, request or order to examine witnesses
  • 23 Commission or order in criminal cases
  • 24 Power of person appointed by foreign authority to take evidence and administer oaths

Division 2 - Summary procedure to obtain evidence for Queensland or other jurisdictions

  • 25 Definitions for div 2
  • 26 Power of Queensland court to request corresponding court in a prescribed country to take evidence for use in Queensland court
  • 27 Power to take evidence on request from corresponding court of a prescribed country
  • 28 Summons of witnesses
  • 29 Examination
  • 30 Objections
  • 31 Depositions to be signed
  • 32 Power of Queensland court to transmit requests to other places
  • 33 Saving as to personal attendance
  • 34. (Repealed)

Division 3 - General procedure to obtain evidence for other jurisdictions

  • 35 Definitions for div 3
  • 35A Application of division to Crown
  • 36 Application to Supreme Court to obtain evidence for civil proceedings in another jurisdiction
  • 37 Power of Supreme Court to give effect to application to obtain evidence
  • 38 Privilege of witnesses
  • 39 Judicial proceedings for the purposes of the Criminal Code
  • 40. (Repealed)

PART 3A - AUDIO VISUAL LINKS AND AUDIO LINKS

Division 1 - Preliminary

Division 2 - Use of interstate audio visual links or audio links in proceedings before Queensland courts

  • 39D Application of div 2
  • 39E State courts may take evidence and submissions from outside State
  • 39F Legal practitioners entitled to practise

Division 3 - Use of interstate audio visual links or audio links in proceedings in participating States

  • 39G Application of div 3
  • 39H Recognised courts may take evidence or receive submissions from persons in Queensland
  • 39I Powers of recognised courts
  • 39J Orders made by recognised court
  • 39K Enforcement of order
  • 39L Privileges, protection and immunity of participants in proceedings before recognised court
  • 39M Recognised court may administer oath in the State
  • 39N Assistance to recognised court
  • 39O Contempt of recognised court
  • 39P Double jeopardy

Division 3A - Use of audio visual links or audio links for expert witnesses

  • 39PA Application of div 3A
  • 39PB Expert witnesses to give evidence by audio visual link or audio link
  • 39PC Direction to jury if expert witness gives evidence by audio visual link or audio link

Division 4 - General provisions about the use of audio visual links or audio links

  • 39Q Application of div 4
  • 39R Queensland courts may take evidence and submissions from external location
  • 39S Failure of the link
  • 39T Expenses
  • 39U External location to be considered part of Queensland court location
  • 39V Witness outside Queensland—when compellable
  • 39W Administration of oaths and affirmations
  • 39X Testimony from outside Australia other than on oath
  • 39Y Putting documents to a person at an external location
  • 39Z Extension of rule-making power

PART 4 - JUDICIAL NOTICE OF SEALS, SIGNATURES AND LEGISLATIVE ENACTMENTS

  • 41 Public Seal of the State
  • 42 Signatures of holders of public offices etc. to be judicially noticed
  • 42A Certain seals to be judicially noticed etc.
  • 43 Acts and statutory instruments to be judicially noticed
  • 43A Administrative arrangements to be judicially noticed

PART 5 - PROOF OF DOCUMENTS AND OTHER MATTERS

Division 1 - Proof of official and judicial documents and matters

  • 44 Proof by purported certificate, document etc.
  • 45 Proof of gazette
  • 46 Proof regarding government printer, parliamentary counsel and Legislative Assembly
  • 46A Presumption of accuracy of official copy of Queensland legislation
  • 46B Court or tribunal may inform itself about Act or statutory instrument
  • 47 Proof of Legislative Assembly’s proceedings or legislative material
  • 48 Proof of particular instruments
  • 49 Proof of standard rules, codes and specifications
  • 50 Proof of act done by Governor or Minister
  • 51 Proof of public documents
  • 52 Proof of registers of British vessels etc.
  • 53 Proof of judicial proceedings
  • 54 Proof of identity of a person convicted
  • 55 Proof of incorporation or registration of company in Queensland
  • 55A Proof of disaster situation under Disaster Management Act 2003
  • 56 Proof of unallocated State land grants
  • 57 Proof of lease or licence
  • 58 Proof of letters patent
  • 58A Proof of document under Royal Sign Manual

Division 2 - Proof of certain miscellaneous documents and matters

  • 59 Comparison of disputed writing
  • 60 Proof of instrument to validity of which attestation is not necessary
  • 61 Proof of instrument to validity of which attestation is necessary
  • 62 Presumption as to documents 20 years old
  • 63 Wills, deeds etc. may be verified by declaration
  • 64 Evidentiary effect of probate etc.
  • 65 Maps, charts etc.
  • 66 Astronomical phenomena

Division 3 - Proof of certain Australian and overseas documents and matters

  • 67 Definitions for div 3
  • 68 Proof of certain Australian and overseas written laws etc.
  • 69 Proof of judicial proceedings of an overseas country
  • 70 Proof of certain documents admissible elsewhere in Australia
  • 71 Royal proclamations, orders of the Privy Council etc.
  • 72 Proof of certain Australian and overseas public documents
  • 73 Proof of incorporation or registration of certain Australian and overseas companies
  • 74 Proof of birth, adoption, death or marriage

Division 4 - Proof of telegraphic messages

  • 75 Notice of intention to adduce telegraphic message in evidence
  • 76 Proof of message
  • 77 Proof of sending a message

Division 5 - Admissibility of convictions in civil proceedings

  • 78 Definitions for div 5
  • 79 Convictions as evidence in civil proceedings
  • 80 Convictions as evidence in actions for defamation
  • 81 Evidence identifying the particulars of a conviction
  • 82 Operation of other laws not affected

Division 6 - Books of account

  • 83 Definitions for div 6
  • 84 Entries in book of account to be evidence
  • 85 Proof that book is a book of account
  • 86 Verification of copy
  • 87 Matters which may be proved under this division ordinarily to be so proved
  • 88 Court may order books of account or copies to be made available
  • 89 Proof that a person has no account
  • 90 Costs
  • 91 Application of ss 84–86 and 89

PART 6 - ADMISSIBILITY OF STATEMENTS AND REPRESENTATIONS

  • 92 Admissibility of documentary evidence as to facts in issue
  • 93 Admissibility of documentary evidence as to facts in issue in criminal proceedings
  • 93A Statement made before proceeding by child or person with an impairment of the mind
  • 93AA Unauthorised possession of, or dealing in, s 93A criminal statements or section 93A transcripts
  • 93AB Permitted use of section 93A transcript by employment-screening applicant or applicant’s lawyer
  • 93AC Publishing section 93A criminal statements or section 93A transcripts prohibited
  • 93B Admissibility of representation in prescribed criminal proceedings if person who made it is unavailable
  • 93C Warning and information for jury about hearsay evidence
  • 94 Admissibility of evidence concerning credibility of persons responsible for statement
  • 95 Admissibility of statements in documents or things produced by processes or devices
  • 95A DNA evidentiary certificate
  • 96 Inferences concerning admissibility
  • 97 Authentication
  • 98 Rejection of evidence
  • 99 Withholding statement from jury room
  • 100 Corroboration
  • 101 Witness’s previous statement, if proved, to be evidence of facts stated
  • 102 Weight to be attached to evidence
  • 103 Provisions of part are alternative

PART 6A - EVIDENCE RELATED TO DOMESTIC RELATIONSHIPS AND DOMESTIC VIOLENCE

Division 1 - Preliminary

  • 103A Definitions for part
  • 103AB References to domestic violence include associated domestic violence
  • 103B Meaning of domestic violence offence
  • 103C Meaning of domestic violence proceeding

Division 1A - Evidence of domestic violence

  • 103CA What may constitute evidence of domestic violence
  • 103CB Evidence of domestic violence
  • 103CC Expert evidence of domestic violence
  • 103CD Ultimate issue and common knowledge rules abrogated

Division 2 - Recorded statements as complainant’s evidence-in-chief in domestic violence proceedings

Subdivision 1 - Use of recorded statements
  • 103D Use of recorded statement as complainant’s evidence-in-chief
  • 103E Requirements for making recorded statements
  • 103F When recorded statement is made with informed consent
  • Subdivision 2 - Admissibility of recorded statements Note—
  • 103G References to recorded statement
  • 103H Admissibility of recorded statements generally
  • 103I Admissibility of recorded statements in particular committal proceedings
  • 103J Application of particular provisions to recorded statements
  • 103K Relationship with other Acts
  • 103L Limitation on cross-examination under Justices Act 1886 not affected
  • 103M Powers to close court not limited
  • 103N Orders, directions and rulings in relation to complainants
  • Subdivision 3 - Editing or otherwise altering recorded statements
  • 103O Editing or otherwise altering recorded statements
  • Subdivision 4 - Offences relating to recorded statements
  • 103P References to recorded statement, transcript of recorded statement or summary of transcript
  • 103Q Unauthorised possession of, or dealing in, recorded statements or transcripts of recorded statements
  • 103R Permitted use of transcript of recorded statement by employment-screening applicant or applicant’s lawyer
  • 103S Publishing recorded statements or transcripts of recorded statements prohibited

Division 3 - Jury directions related to domestic violence

Subdivision 1 - General matters
  • 103T Request for direction to jury about domestic violence
  • 103U Request for direction to jury about self-defence in response to domestic violence
  • 103V Judge may direct jury about domestic violence on own initiative
  • 103W Direction may be given before evidence is adduced and may be repeated
  • 103X Application of subdivision 2 to trial by judge or magistrate sitting alone
  • 103Y No limit of court’s duty to direct jury
  • Subdivision 2 - Content of jury directions about domestic violence
  • 103Z Content of general direction about domestic violence
  • 103ZA Direction about self-defence in response to domestic violence
  • 103ZB Examples of behaviour, or patterns of behaviour, that may constitute domestic violence
  • 103ZC Factors that may influence how a person addresses, responds to or avoids domestic violence

PART 7 - REPRODUCTIONS OF DOCUMENTS

Division 1 - Preliminary

Division 2 - Reproduction of official documents

  • 105 Certified reproductions of certain official documents etc. to be admissible without further proof

Division 3 - Reproduction of business documents

  • 106 Admissibility of reproductions of business documents destroyed, lost or unavailable
  • 107 Use of photographing machines
  • 108 Affidavit of maker of print from transparency to be evidence
  • 109 Proof where document processed by independent processor
  • 110 Reproduction not to be admitted as evidence unless transparency in existence
  • 111 Transparency etc. may be preserved in lieu of document
  • 112 Proof of destruction of documents etc.
  • 113 One affidavit sufficient in certain circumstances
  • 114 Certification required when affidavit etc. not contained in length or series of film
  • 115 Discovery, inspection and production where document destroyed or lost

Division 4 - General

  • 116 Copies to be evidence
  • 117 Further reproduction may be ordered by court
  • 118 Colours and tones of reproductions
  • 119 Notice to produce not required
  • 120 Proof of comparisons not required
  • 121 Presumptions as to ancient documents
  • 122 Reproductions made in other States
  • 123 Judicial notice
  • 124 A court may reject reproduction
  • 125 Weight of evidence
  • 126 Provisions of part are alternative
  • 127. (Repealed)
  • 128 Regulation may exclude application of provisions
  • 129 Public Records Act 2002 not affected

PART 8 - MISCELLANEOUS

  • 129A Order that evidence may be given in a different way
  • 129B Person may be examined without subpoena or other process
  • 130 Rejection of evidence in criminal proceedings
  • 131 Witnesses for defence to be sworn
  • 131A Court may order interpreter to be provided
  • 132 Actions for breach of promise of marriage
  • 132A Admissibility of similar fact evidence
  • 132B. (Repealed)
  • 132BA Delay in prosecuting offence
  • 132C Fact finding on sentencing
  • 133 Impounding documents
  • 133A DNA analysts
  • 134 Power to appoint a government printer
  • 134A Production of documents by agencies in relation to civil proceedings
  • 134B Approval of forms
  • 135 Regulation-making power

PART 9 - TRANSITIONAL AND DECLARATORY PROVISIONS

Division 1 - Evidence Amendment Act 2000

  • 136 Transitional—Evidence Amendment Act 2000

Division 1A - Justice and Other Legislation Amendment Act 2003

  • 136A Declaratory provision for Justice and Other Legislation Amendment Act 2003

Division 2 - Evidence (Protection of Children) Amendment Act 2003

  • 137 Definitions for div 2
  • 138 Communications between a husband and wife
  • 139 Evidence admitted under repealed s 9
  • 140 Committal proceeding
  • 141 Prerecording of evidence for a summary trial
  • 142 Prerecording of evidence for a trial on indictment

Division 3 - Cross-Border Law Enforcement Legislation Amendment Act 2005

  • 143 Witness anonymity certificates

Division 4 - Justice and Other Legislation Amendment Act 2005

  • 144 Statement made before proceeding by child or person with an impairment of the mind
  • 145 Definition chief executive (surveys)

Division 5 - Criminal Code and Other Acts Amendment Act 2008

  • 146 References to particular Criminal Code offences

Division 6 - Health and Other Legislation Amendment Act 2016

  • 147 Prescribed special offence taken to include references to Criminal Code, ss 208 and 209

Division 7 - Serious and Organised Crime Legislation Amendment Act 2016

  • 148 Special witnesses

Division 8 - Criminal Law Amendment Act 2017

  • 149 Definition for division
  • 150 Admissibility of particular copies of videorecordings made before commencement
  • 151 Destruction of recordings made before commencement
  • 152 Application of DNA evidentiary certificate provision to proceedings started before commencement

Division 9 - Victims of Crime Assistance and Other Legislation Amendment Act 2017

  • 153 Sexual assault counselling privilege

Division 10 - Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020

  • 154 Application of s 132BA
  • 155 Application of pt 2, div 4C

Division 11 - Justice and Other Legislation Amendment Act 2020

  • 156 Proceedings started before commencement
  • Note

Division 12 - Evidence and Other Legislation Amendment Act 2022

  • 157 Journalist privilege
  • 158 Domestic violence proceedings

Division 13 - Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023

Division 15 - Integrity and Other Legislation Amendment Act 2024

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