New South Wales Consolidated Acts New South Wales Consolidated ActsNote--: The Commonwealth Act includes a definition of this term.
(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.
(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.
(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.
Note--: See clause 9 of Part 2 of this Dictionary for the meaning of "law".
(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).
(a) a Department within the meaning of the Public Service Act 1999 of the Commonwealth, 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 Commonwealth 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 of the Commonwealth, 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 Commonwealth 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.
Notes--:1
"NSW court" is defined in this Dictionary.2 The Commonwealth Act does not include this definition.
(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 of the Commonwealth.
(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".
Note--: The Commonwealth Act includes a definition of this term.
Note--: The Commonwealth definition of this term differs from this definition.
Note--: The Commonwealth Act does not include definitions of
"Governor of a State" and
"Governor-General" . These definitions are covered by sections 16A and 16B of the Acts Interpretation Act 1901 of the Commonwealth.
(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, heard or otherwise perceived at that place and time, or
(b) a report (whether oral or in writing) of such an assertion.
(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.
(a) in relation to the Parliament of the Commonwealth--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 Commonwealth Constitution or convened under any Act of the Commonwealth, 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.
(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.
Note--: Examples of legal counsel are in-house counsel and government solicitors.
(a) the Supreme Court, or
(b) any other court created by Parliament,and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence.
Note--: The Commonwealth Act does not include this definition.
(a) a member of the Australian Federal Police, or
(b) a member of the police force of a State or Territory.
(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 Commonwealth 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.
(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.
(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 or body holding office or exercising power under or because of the Commonwealth 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.
(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.
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.
(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, or(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or(d) it would be unlawful for the person to give the evidence, or(e) a provision of this Act prohibits the evidence being given, or(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or(g) 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.
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.
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.
(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 clause to a party includes a defendant in a criminal proceeding.
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.
In this Act--
(a) a reference to a person appointed or holding office under or because of an Australian law or a law of the Commonwealth includes a reference to an APS employee within the meaning of the Public Service Act 1999 of the Commonwealth, and
(b) in that context, a reference to an office is a reference to a position occupied by the APS employee concerned, and a reference to an officer includes a reference to a Secretary, or APS employee, within the meaning of the Act.
(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.
(1) A reference in this Act to a child of a person includes a reference to--(a) an adopted child or 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.
(1) A reference in this Act to a de facto partner of a person is a reference to a person who is in a de facto relationship with the person.
(2) A person is in a de facto relationship with another person if the two persons have a relationship as a couple and are not legally married.
(3) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as are relevant in the circumstances of the particular case--(a) the duration of the relationship,(b) the nature and extent of their common residence,(c) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,(d) the ownership, use and acquisition of their property,(e) the degree of mutual commitment to a shared life,(f) the care and support of children,(g) the reputation and public aspects of the relationship.
(4) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether two persons have a relationship as a couple.
(5) For the purposes of subclause (3), the following matters are irrelevant--(a) whether the persons are different sexes or the same sex,(b) whether either of the persons is legally married to someone else or in another de facto relationship.