EVIDENCE ACT 2008 (NO. 47 OF 2008)

Victorian Numbered Acts

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EVIDENCE ACT 2008 (NO. 47 OF 2008) - SCHEDULE 1

SCHEDULE 1

Sch. 1

OATHS AND AFFIRMATIONS

Oaths by witnesses

I swear ( or the person taking the oath may promise ) by Almighty God ( or the person may name a god recognised by his or her religion ) that the evidence I shall give will be the truth, the whole truth and nothing but the truth.

Oaths by interpreters

I swear ( or the person taking the oath may promise ) by Almighty God ( or the person may name a god recognised by his or her religion ) that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability.

Affirmations by witnesses

I solemnly and sincerely declare and affirm that the evidence I shall give will be the truth, the whole truth and nothing but the truth.

Affirmations by interpreters

I solemnly and sincerely declare and affirm that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability.

__________________

DICTIONARY

Section 3

PART 1—DEFINITIONS

ACT court

Note

The Commonwealth Act includes a definition of this term.

"admission" means a previous representation that is—

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
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(b) adverse to the person's interest in the outcome of the proceeding;

"asserted fact" is defined in section 59;

"associated defendant", in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for—

(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;

"Australia" includes the external Territories;

"Australian court" means—

(a) the High Court; or

(b) a court exercising federal jurisdiction; 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;
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"Australian law" means a law of the Commonwealth, a State or a Territory;

Note

See clause 9 of Part 2 of this Dictionary for the meaning of law .

Australian lawyer has the meaning it has in the Legal Profession Act 2004 ;

Australian legal practitioner has the meaning it has in the Legal Profession Act 2004 ;

"Australian or overseas proceeding" means a proceeding (however described) in an Australian court or a foreign court;

"Australian Parliament" means the Parliament, the Parliament of the Commonwealth or another State or the Legislative Assembly of a Territory;

Australian practising certificate has the meaning it has in the Legal Profession Act 2004 ;

Australian-registered foreign lawyer has the meaning it has in the Legal Profession Act 2004 ;

"Australian Statistician" means the Australian Statistician referred to in section 5(2) of the Australian Bureau of Statistics Act 1975 of the Commonwealth, and includes any person to whom the powers of the Australian Statistician under section 12 of the Census and Statistics Act 1905 of the Commonwealth have been delegated;

business is defined in clause 1 of Part 2 of this Dictionary;
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"case" of a party means the facts in issue in respect of which the party bears the legal burden of proof;

"child" means a child of any age and includes the meaning given in clause 10(1) of Part 2 of this Dictionary;

civil penalty is defined in clause 3 of Part 2 of this Dictionary;

"civil proceeding" means a proceeding other than a criminal proceeding;

"client" is defined in section 117;

"coincidence evidence" means evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection;

"coincidence rule" means section 98(1);

"Commonwealth owned body corporate" means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Act 2001 of the Commonwealth, be—

(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);

"Commonwealth record" means a record made by—

(a) a Department within the meaning of the Public Service Act 1999 of the Commonwealth; or
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(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;

confidential communication is defined in section 117;
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"confidential document" is defined in section 117;

"court" means Victorian court;

Notes

1 Victorian court is defined in this Dictionary.

2 The Commonwealth Act does not include this definition.

"credibility" of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person's ability to observe or remember facts and events about which the person made the representation;

"credibility" of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence;

"credibility evidence "is defined in section 101A;

"credibility rule" means section 102;

"criminal proceeding" means a prosecution for an offence and includes—
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(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;

cross-examination is defined in clause 2(2) of Part 2 of this Dictionary;

"cross-examiner" means a party who is cross-examining a witness;

de facto partner is defined in clause 11 of Part 2 of this Dictionary;

"document" means any record of information, and includes—

(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

(d) a map, plan, drawing or photograph;

Note

See also clause 8 of Part 2 of this Dictionary on the meaning of "document".

"electronic communication" has the same meaning as it has in the Electronic Transactions (Victoria) Act 2000 ;

examination in chief is defined in clause 2(1) of Part 2 of this Dictionary;
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"exercise" of a function includes performance of a duty;

"fax", in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy;

federal court

Note

The Commonwealth Act includes a definition of this term.

"foreign court" means any court (including any person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body is empowered to require the answering of questions or the production of documents) of a foreign country or a part of such a country;

"function" includes power, authority or duty;

"government or official gazette" includes the Government Gazette;

Note

The definition of this term in the Commonwealth Act and New South Wales Act differs from this definition.

"Governor of a State" includes any person for the time being administering the Government of the State;

"Governor-General" means Governor-General of the Commonwealth and includes any person for the time being administering the Government of the Commonwealth;
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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.

"hearsay rule" means section 59(1);

"identification evidence" means evidence that is—

(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;

"investigating official" means—

(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;
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"joint sitting" means—

(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;

"judge", in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held;

law is defined in clause 9 of Part 2 of this Dictionary;

"leading question" means a question asked of a witness that—

(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;

"legal counsel" means an Australian lawyer employed in or by a government agency or other body who by law is exempted from holding an Australian practising certificate, or who does not require an Australian practising certificate, to engage in legal practice in the course of that employment;
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Note

Examples of legal counsel are in-house counsel and government solicitors.

"Legislative Assembly" means any present or former Legislative Assembly of a Territory, and includes the Australian Capital Territory House of Assembly;

"member" of the Australian Federal Police includes a special member or a staff member of the Australian Federal Police;

NSW court

Note

The New South Wales Act includes this definition.

"offence" means an offence against or arising under an Australian law;

"opinion rule" means section 76;

overseas-registered foreign lawyer has the meaning it has in Part 2.8 of the Legal Profession Act 2004 ;

"parent" includes the meaning given in clause 10(2) of Part 2 of this Dictionary;

picture identification evidence is defined in section 115 ;

"police officer" means—

(a) a member of the Australian Federal Police; or

(b) a member of the police force of a State or Territory;

"postal article" has the same meaning as in the Australian Postal Corporation Act 1989 of the Commonwealth;
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"previous representation" means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced;

"prior consistent statement" of a witness means a previous representation that is consistent with evidence given by the witness;

"prior inconsistent statement" of a witness means a previous representation that is inconsistent with evidence given by the witness;

"probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue;

"prosecutor" means a person who institutes or is responsible for the conduct of a prosecution;

"public document" means a document that—

(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—
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(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;

re-examination is defined in clause 2(3) and (4) of Part 2 of this Dictionary;

"representation" includes—

(a) an express or implied representation (whether oral or in writing); or

(b) a representation to be inferred from conduct; or

(d) a representation that for any reason is not communicated;

"seal" includes a stamp;

"tendency evidence" means evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection;

"tendency rule" means section 97(1);

"traditional laws and customs "of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group;
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"Victorian court" means—

(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 and New South Wales Act do not include this definition.

visual identification evidence is defined in section 114;

"witness" includes the meaning given in clause 7 of Part 2 of this Dictionary.

PART 2—OTHER EXPRESSIONS

1 References to businesses

(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;

(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);
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(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.

2 References to examination in chief, cross-examination and re-examination

(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.
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(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.

3 References to civil penalties

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.

4 Unavailability of persons

(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 about the fact; or

(d) a provision of this Act prohibits the evidence being given; or

(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(f) 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.

5 Unavailability of documents and things
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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

(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.

6 Representations in documents
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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.

7 Witnesses

(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.

8 References to documents

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

8A References to offices etc.
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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.

9 References to laws

(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.

10 References to children and parents

(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

11 References to de facto partners
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(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;

(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;
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(b) whether either of the persons is legally married to someone else or in another de facto relationship.

(6) Despite subclauses (3) and (4), a person is in a de facto relationship with another person if those two persons are in a registered relationship within the meaning of the Relationships Act 2008 .

Note

The Commonwealth Act and New South Wales Act do not include subclause (6).

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