EVIDENCE ACT 1958

Victorian Consolidated Legislation

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EVIDENCE ACT 1958

No. 6246 of 1958
Version incorporating amendments as at 1 July 2007

TABLE OF PROVISIONS

Section Page
1. Short title and commencement
2. Repealed
3. Definitions

PART I-THE MEANS OF OBTAINING EVIDENCE

Division 1-Orders and commissions to examine witnesses

4. Order to examine witnesses
5. Exclusion of evidence in criminal proceeding
6. Operation of other laws
7-9. Repealed

Division 1A-Examination of witnesses abroad

9A. Definitions
9B. Proceedings in superior courts
9C. Proceedings in inferior courts
9D. Exclusion of evidence in criminal proceeding
9E. Operation of other laws

Division 1B-Examination of witnesses outside the State but within Australia

9F. Application of Division
9G. Definitions
9H. Proceedings in superior courts
9I. Proceedings in inferior courts
9J. Exclusion of evidence in criminal proceedings
9K. Operation of other laws

Division 1C-Taking of evidence for foreign and Australian courts

9L. Definitions
9M. Application to the Supreme Court for assistance in obtaining evidence for proceedings in other court
9N. Power of the Supreme Court to give effect to application for assistance
9O. Privilege of witnesses
9P. Offence
9Q. Operation of other laws

Division 2-Subpoenas etc. and examination without subpoena

10. Subpoena and summonses to witnesses
11. Persons present may be examined without a subpoena

Division 3-Prisoners

12. Prisoner may be brought before court to give evidence without writ of habeas corpus

Division 4-Inspection of property

13. Party may be ordered to allow inspection of realty or personalty

Division 5-Boards appointed and commissions issued by the Governor in Council

14. Power to send for persons and papers
15. Power of member of board to examine upon oath
16. Penalty for non-attendance or refusing to give evidence etc.
17. Power to send for witnesses and documents
18. Power of commissioner to examine upon oath etc.
19. Penalty for non-attendance, refusing to give evidence etc.
19A. Application of Division
19B. Public may be excluded in certain circumstances
19C. Incriminating answers
19D. Legal professional privilege
19E. Powers of entry, inspection and possession
20. Chairman to report to law officer if witness fails to attend etc.
20A. Summons to require continuous attendance
21. Allowances to witnesses
21A. Privileges and immunities in relation to inquiries
21B. Express reference necessary to include section 21A.
21C. Sections 20 and 20A to apply in certain cases

Division 6-Disclosure of information relating to applications for legal aid

21D. Definitions
21E. Disclosure of information etc. relating to proposed applications
21F. Disclosure of information etc. relating to applications
21G. Disclosure of information etc. where applicant has died
21H. Application of this Division

Division 7-Family mediations

21I. Definitions
21J. Admissions etc. made at mediation conferences

Division 8-Dispute settlement centres

21K. Definitions
21L. Admissions etc. at mediation conferences
21M. Confidentiality
21N. Exoneration from liability

PART II-WITNESSES

Division 1-Who may testify

22. Witness not to be incapacitated by crime or interest
23. Evidence of children and persons with a cognitive impairment
23A. Repealed
24. Parties and husbands and wives may be witnesses
25. Abolition of accused's right to make unsworn statement or to give unsworn evidence

Division 2-Privileges disabilities and obligations of witnesses

26. Exceptions as to criminal cases
27. Communications to husband or wife privileged
28. Confessions to clergymen and medical men
29. Where witness must answer questions which disgrace or criminate
30. Statements made by witness before board or commission not to be used against witness
31. Admissibility of evidence or statements as to access by husband or wife
32. Compellability of parties and witnesses regarding evidence relating to or establishing adultery
32A. Documents relating solely to party's case

Division 2A-Confidential communications

32AB. Guiding principles
32B. Definitions
32C. Exclusion of evidence of confidential communications
32D. Restriction on granting leave
32E. Limitations on privilege
32F. Ancillary orders available on a granting of leave
32G. Operation of Division

Division 3-Examination and cross-examination of witnesses

33. Witness may be questioned as to previous conviction
34. Adverse witness may be contradicted by party calling witness
35. Evidence of previous statement of witness
36. Witness may be cross-examined as to written statements without producing them
37. Cross-examination as to credit
37A. Special rules of evidence in relation to certain offences which relate to rape
37B. Use of recorded evidence-in-chief in certain proceedings
37C. Alternative arrangements for giving evidence in certain proceedings
37CAA. Alternative arrangements for giving evidence by certain complainants in certain proceedings
37CA. Special rules for cross-examination of protected witnesses
37D. Video link evidence from overseas in certain proceedings
37E. Evidence of specialised knowledge in certain cases
38. Saving existing rights
39. Indecent or scandalous questions
40. Questions intended to insult or annoy
41. Prohibited questions not to be published

Division 3AA-Examination and cross-examination of certain witnesses

41A. Definition
41B. Application of Division
41C. Evidence of specialised knowledge to determine competency
41D. Evidence of previous representations made by child
complainants
41E. Alternative arrangements for giving evidence in certain proceedings by child complainants or complainants with a cognitive impairment
41F. Improper questions
41G. Pre-recording evidence at special hearing
41H. Use of pre-recorded evidence

Division 3A-Witness orders

42. Victim who is a witness entitled to be present in court unless the court otherwise orders

Division 4-Manner of giving evidence

42A. Form of evidence
42B. Manner of giving voluminous or complex evidence

PART IIAA-WITNESS IDENTITY PROTECTION

Division 1-Introductory

42BA. Definitions

Division 2-Witness identity protection certificates for local operatives

42BB. Giving witness identity protection certificate
42BC. Statutory declaration by local operative
42BD. Form of witness identity protection certificate
42BE. Protection of decision to give certificate
42BF. Cancellation of witness identity protection certificate
42BG. Permission to give information disclosing operative's identity etc.
42BH. Disclosure offences
42BI. Reports about witness identity protection certificates
42BJ. Delegation

Division 3-Interstate witness identity protection certificates

42BK. Application of Division
42BL. Filing and notification
42BM. Effect of interstate witness identity protection certificate
42BN. Orders to protect interstate operative's identity etc.
42BO. Disclosure of interstate operative's identity to presiding officer
42BP. Application for disclosure of interstate operative's identity etc.
42BQ. Suppression and protection orders
42BR. Directions to jury
42BS. Disclosure offences

PART IIA-USE OF AUDIO VISUAL AND AUDIO LINKS

Division 1-Definitions

42C. Definitions

Division 2-Persons other than accused

42D. Application of Division
42E. Appearance, etc. by audio visual link or audio link
42F. Special provisions applicable to certain proceedings involving children
42G. Technical requirements
42H. Costs
42I. Certain other laws not affected

Division 3-Appearance by accused persons

42J. Application of Division
42K. Appearance of adult accused person before court
42L. Making of direction for physical appearance in section 42K(1) proceedings
42M. Making of direction for audio visual appearance in section 42K(2) proceedings
42N. Application for making of direction under section 42K(4)
42O. Appearance before court of an accused person who is a child
42P. Making of direction for audio visual appearance by child
42Q. Practice directions
42R. Requirements for audio visual appearance by accused
42S. Protection of communication between accused and legal representative
42T. Application of Surveillance Devices Act 1999.

Division 4-General

42U. Putting documents to a remote person
42V. Direction to jury in criminal trial
42W. Application of laws about witnesses, etc.
42X. Arraignment
42Y. Administration of oaths and affirmations

PART III-PROOF OF DOCUMENTS, PROOF OF FACTS BY DOCUMENTS AND DOCUMENT UNAVAILABILITY

Division 1-Introductory

43. Provisions to be additional
44. Provisions relating to evidence apply to all persons acting judicially
45. Copies admissible without further proof of sealing, signing etc.
46. Effect of copies same as original
47. No proof necessary that document printed by government
printer

Division 2-General

48. British and foreign treaties may be proved by copies
49. British and foreign wills, judgments etc. may be proved by
copies
50. Mode of proving Royal proclamations Orders of Privy Council or rules etc. of Her Majesty's Imperial Government
51. Documents admissible in England, Wales or Ireland without proof to be equally admissible in Victoria
52. Register of vessels to be proved by original or copy

Division 2A-Reproductions of documents

53. Definitions
53A. Certified reproductions of certain public documents admissible without further proof
53B. Admissibility of reproductions of business documents destroyed, lost or unavailable
53C. Attorney-General may approve machines for micro-
filming etc.
53D. Proof where document processed by independent processor
53E. Affidavit or declaration of maker of print from micro-film etc. to be evidence
53F. Proof of destruction of documents etc.
53G. Certified copy of affidavit or declaration to be admissible
53H. One affidavit or declaration sufficient where series of documents copied
53J. Reproductions not to be admitted as evidence unless negative in existence etc.
53K. Changes in colour or tone
53L. Notice to produce not required
53M. Presumptions as to ancient documents
53N. Reproductions made in other States etc.
53P. Judicial notice
53Q. Micro-film etc. may be preserved in lieu of document
53R. Factors determining admissibility
53S. Estimation of importance of reproduction rendered admissible
53T. Interpretation of provisions of this Division

Division 3-Admissibility and effect of documentary evidence

54. Saving
55. Admissibility of documentary evidence as to facts in issue
55A. Admissibility of evidence concerning credibility of person responsible for statement
55AB. Certain depositions may be used at trial
55AC. Evidence of a witness at a subsequent trial
55B. Admissibility of statements produced by computers
55C. Whether a statement is admissible
55D. Where a statement is to be given in evidence
56. As to effect of Division on rules requiring corroboration
57. Proof of instrument to validity of which attestation is
necessary
58. Presumptions as to documents twenty years old

Division 3A-Books of account

58A. Definitions
58B. Entries in book of account to be evidence
58C. Where person in business party to proceedings, other party entitled to inspect etc. books of account
58D. Proof that book is a book of account
58E. Verification of copy
58F. Matters which may be proved under this Division ordinarily
to be so proved
58G. Court may order that books of account or copies be made available
58H. Costs of application
58I. Application of sections 58B, 58D and 58E.
58J. Computation of time

Division 4-Further provisions relating to Australasian documents

59. Definitions
60. Votes and proceedings of Legislature of any Australasian State proved by copy
61. Royal proclamation in Australasian State proved by copy
62. Proof of Government Gazette
63. Mode of proving proclamations etc. of Governor or Ministers of the Crown of Australasian State
64. Government Gazette to be evidence of acts of Governor, Ministers etc.
65. Proof of certain public and corporation documents
66. Documents admissible in Australasian States without proof
to be equally admissible in Victoria
67. Documents of Australasian State which if Victorian admissible on mere production provable by certified copy
68. Incorporation of any company how authenticated
69. Copies of documents relating to companies

Division 5-Further provisions relating to Victorian documents

70. Mode of proving proclamations, orders and regulations of Board of Land and Works
71. Government Gazette to be evidence of act of Board of Land and Works
72. Certified copies of certain maps and documents to be prima facie evidence
73. Proof of Crown grants
74. Proof of will and death
75. Signature of clerks of courts to be evidence

Division 5A-Scientific tests

75A. Evidence of results of scientific tests

Division 6-Judicial notice

76. Acts of Parliament of the United Kingdom to be judicially noticed
77. Australasian States and their Acts to be judicially noticed
78. Public seals of States
79. Certain signatures and seals to be judicially noticed
80. All persons acting judicially to take judicial notice
81. Effect of judicial notice of seal or signature in certain cases

Division 7-By-laws and minutes

82. Definitions
83. Proof of by-laws
84. Form of certificate
85. Technical proof unnecessary
86. Proof of proceedings of councils, committees etc.

Division 8-Convictions and acquittals

87. Proof of trial or conviction or acquittal for an indictable offence by certified copy
88. Mode of proving previous convictions in other countries
89. Evidence of previous summary conviction

Division 9-Document unavailability

89A. Meaning of unavailability of document
89B. Court may make ruling or order
89C. Matters the court must consider
89D. Relationship of this Division with VCAT Act
89E. Operation of Public Records Act 1973.

PART IIIA-ADMISSIBILITY OF FINDINGS OF GUILT IN CIVIL PROCEEDINGS

90. Convictions etc. as evidence in civil proceedings
91. Repealed
92-98. Repealed
98A-98C Repealed

PART IV-OATHS AFFIRMATIONS AFFIDAVITS DECLARATIONS

Division 1-Introductory

99. Definition

Division 2-Oaths and affirmations

100. Manner of administration of oaths
101. Swearing with uplifted hand
102. When affirmation may be made instead of oath
103. Form of oral affirmation
104. Validity of oath not affected by absence of religious belief

Division 3-Declarations in public departments

105. Declarations may be substituted for oaths and affidavits
106. Such substitution to be notified in Gazette

Division 4-Statutory declarations

107. Statutory declarations
107A. List of persons who may witness statutory declarations
108. Objection that matter is not one requiring verification not to be taken
109. Name and address of person witnessing declaration to appear on declaration

Division 5-Courts and officers

110. Courts etc. may administer oaths to witnesses
110A. Repealed
111. Power of certain officers of courts etc. to administer oaths
111A. Person appointed by foreign authority may take evidence and administer oaths

Division 6-Gaolers

112. Affidavits of prisoners
Divisions 7, 8-Repealed
113-123B Repealed

Division 9-Affidavits in Victoria

123C. Affidavits in Victoria how sworn and taken

Division 10-Affidavits in places out of Victoria

124. Taking oaths out of Victoria
125. Affidavits and declarations required to be made before a justice sufficient if made before a justice elsewhere

Division 11-Jurat

126. Jurat to state where and when oath is taken
126A. Jurat etc. to affidavit to be prima facie evidence of
execution

PART V-ATTESTATIONS VERIFICATIONS ACKNOWLEDGMENTS NOTARIAL ACTS ETC.

127. Provision of Part 4 extended to attestations, notarial acts etc.
128. Attestations etc. before a justice
129. Repealed

PART VI-RECORDING OF EVIDENCE

130. Power to person acting judicially to direct that evidence be recorded
131. As to methods of recording evidence
132-133 Repealed
134. Persons recording evidence under this Part to be officers of the court
135. Records made under this Part to be received as prima facie evidence of matter therein contained
136. Repealed
137. Penalty for falsely recording evidence
138, 139 Repealed
140. Power to Governor in Council to regulate fees

PART VII-OFFENCES PERJURY FORGERY FALSE CERTIFICATES ETC.

141. Persons making wilful false statements on oath, declaration
etc. guilty of perjury
142. Forgery, using etc. false documents an indictable offence
143. Printing or using documents falsely purporting to be printed by government printer an indictable offence
144. Giving false certificates an indictable offence
145. Interpretation provisions to apply to this Part

PART VIII-MISCELLANEOUS

146. Impounding documents
147. Attesting witness
148. Comparison of handwriting
149. Confession after promise or threat or purporting to be on oath
149A. Admissions of fact in criminal proceedings
149AB. Agreed facts
149B. Directions by judge where parties consent
149C. Variation or revocation of direction under section 149B.
150. Issue of warrant when witness does not appear
151. Abolition of extra-judicial oaths
151A. Supreme Court-limitation of jurisdiction
152. Regulations
153. Transitional provisions (Crimes (Amendment) Act 1997)
154. Transitional provisions (Division 2A of Part II)
155. Transitional provision-Magistrates' Court (Committal Proceedings) Act 2000.
156. Transitional provision-Evidence (Witness Identity Protection) Act 2004.
156A. Transitional provision-Sentencing (Further Amendment) Act 2005.
157. Transitional provision-Children and Young Persons (Age Jurisdiction) Act 2004.
158. Transitional provision-Evidence (Document Unavailability) Act 2006.
158A. Transitional provision-Crimes (Sexual Offences)
Act 2006.
159. Transitional provision-Crimes (Sexual Offences) (Further Amendment) Act 2006.
__________________
SCHEDULE 1-Repealed
SCHEDULE 2-Form of Order of Prisoner to be Brought Before
Court
SCHEDULE 3-Form of Certificate for Authentication of By-law
SCHEDULE 4-Repealed
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details

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