EVIDENCE ACT 2008

Victorian Consolidated Legislation

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EVIDENCE ACT 2008

No. 47 of 2008
Version incorporating amendments as at 22 June 2011

TABLE OF PROVISIONS

Section Page

CHAPTER 1-PRELIMINARY

PART 1.1-FORMAL MATTERS

1. Purpose
2. Commencement
3. Definitions
3A. Notes

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 Acts
9. Application of common law and equity
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-accused 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 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
24A. Alternative oath
25. Rights to make unsworn statements unaffected

Division 3-General rules about giving evidence

26. Court's control over questioning of witness
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

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 dependant 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 accused
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 as to credibility
105. Further protections-accused making unsworn statements
106. Exception-rebutting denials by other evidence
107. Exception-application of certain provisions to makers of representations
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 an accused
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-accused
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

Division 1B-Sexual assault communications privilege

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

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

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 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
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
__________________
SCHEDULE 1-Oaths and Affirmations
SCHEDULE 2-Transitional Provisions

PART 1-GENERAL
1. Definitions
2. Application of this Act on commencement day
3. Application of section 128A.
4. Application of Part 3.10 to disclosure requirements
5. Identifications already carried out
6. Documents and evidence produced before commencement
day by processes, machines and other devices
7. Documents attested and verified before the commencement
day
8. Matters of official record published before the commencement day
9. Agreed facts
10. Application of Act to improperly or illegally obtained
evidence

PART 2-APPLICATION OF NOTIFICATION PROVISIONS
11. Notification provisions
12. Notice of intention to adduce hearsay evidence
13. Notice of intention to adduce evidence as to tendency or coincidence
14. Time limits for making requests
15. Requests under section 173.
16. Proof of voluminous or complex documents
__________________
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
1. General Information
2. Table of Amendments
3. Explanatory Details

CHAPTER 1-PRELIMINARY
Introductory Note
Outline of this Act
This Act sets out the State rules of evidence. Generally speaking, the Act applies to proceedings in State courts and before other persons or bodies required to apply the laws of evidence (see section 4).
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 Evidence Act 1995 of the Commonwealth (the Commonwealth Act) and the Evidence Act 1995 of New South Wales (the New South Wales Act). The Acts are drafted in identical terms except so far as differences are identified by appropriate annotations to the texts, and except so far as minor drafting variations are required to accord with the drafting style of each jurisdiction.
If one Act contains a provision that is not included in another Act, there is a gap in the numbering of the other Act in order to maintain consistent numbering for the other provisions.
The Evidence Act 2001 of Tasmania also largely mirrors this legislation, but there are some departures.

PART 1.1-FORMAL MATTERS

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