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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Evidence Bill 2024
Contents
Part 1 -- Preliminary
Division 1 -- Introduction
1. Short title 2
2. Commencement 2
Division 2 -- Interpretation
3. Terms used 2
4. References to businesses 14
5. Examination in chief, cross-examination and
re-examination 15
6. References to documents 16
7. Representations made in documents 17
8. References to availability of documents and things 17
9. References to availability to give evidence 18
10. References to laws 19
11. References to criminal proceedings 20
12. References to civil penalties 20
13. References to offspring and parents 20
Division 3 -- Application of Act
14. Application of Act 21
15. Extended application of certain provisions 21
16. Electronic processes facilitation 21
17. Act binds Crown 22
18. Operation of other Acts 22
19. Application of common law and equity 22
20. Parliamentary privilege preserved 23
21. General powers of court 23
169--1 page i
Evidence Bill 2024
Contents
Part 2 -- Adducing evidence
Division 1 -- Witnesses
Subdivision 1 -- Competence and compellability of
witnesses
22. Competence and compellability 24
23. Competence: lack of capacity 24
24. Compellability: reduced capacity 25
25. Compellability: foreign sovereign and others 26
26. Competence and compellability: judges and jurors 27
27. Competence and compellability: accused and
co-accused in criminal proceeding 27
28. Compellability: spouses and others in criminal
proceeding 27
29. Compellability: witnesses in public revenue cases 29
30. Comment on decision not to give evidence in
criminal proceeding 30
Subdivision 2 -- Oaths and affirmations
31. Sworn evidence of witnesses to be on oath or
affirmation 31
32. Interpreters to act on oath or affirmation 32
33. Choice of oath or affirmation 32
34. Application of Oaths, Affidavits and Statutory
Declarations Act 2005 32
Subdivision 3 -- General rules about giving evidence
35. Court's control over questioning of witnesses 33
36. Parties may question witnesses 33
37. Order of examination in chief, cross-examination
and re-examination 34
38. Manner and form of questioning witnesses and
their responses 34
39. Interpreters 34
40. Witnesses who cannot hear adequately or speak
adequately 35
41. Attempts to revive memory in court 35
42. Evidence given by police officers 36
43. Attempts to revive memory out of court 37
44. Effect of calling for production of documents 37
45. Person may be examined without subpoena or
other process 38
page ii
Evidence Bill 2024
Contents
Subdivision 4 -- Examination in chief and
re-examination
46. Leading questions not to be asked 39
47. Unfavourable witnesses 40
48. Limits on re-examination 41
Subdivision 5 -- Cross-examination
49. Witness called in error not to be cross-examined 41
50. Improper questions 41
51. Leading questions may be asked 43
52. Prior inconsistent statements of witnesses 44
53. Previous representations of other persons 45
54. Production of documents 46
55. Leave to recall witnesses 47
56. Cross-examination of witness by unrepresented
party 47
57. No direct cross-examination of certain witnesses
by unrepresented accused 49
Division 2 -- Documents
58. Terms used 50
59. Proof of contents of documents 51
60. Documents in foreign countries 53
61. Original document rule abolished 53
62. Copies of dutiable instruments 53
Division 3 -- Other ways of adducing evidence
63. Adducing of other evidence not affected 54
64. Demonstrations, experiments and inspections 54
65. Demonstrations, experiments and inspections to be
evidence 55
66. Charts, summaries and explanatory documents 56
67. Court may require voluminous or complex
evidence to be given in another form 56
Part 3 -- Admissibility of evidence
Division 1 -- Relevance
68. Relevant evidence 58
69. Relevant evidence to be admissible 58
70. Provisional relevance 58
71. Inferences as to relevance 59
page iii
Evidence Bill 2024
Contents
Division 2 -- Hearsay
Subdivision 1 -- Hearsay rule
72. Hearsay rule: exclusion of hearsay evidence 59
73. Exception: evidence relevant for non-hearsay
purpose 60
74. Exceptions to hearsay rule dependent on
competency 61
Subdivision 2 -- First-hand hearsay
75. Restriction to first-hand hearsay 61
76. Exception: civil proceeding if maker not available 62
77. Exception: civil proceeding if maker available 62
78. Exception: criminal proceeding if maker not
available 63
79. Exception: criminal proceeding if maker available 66
80. Exception: particular contemporaneous statements
about person 67
81. Notice to be given 67
82. Objections to tender of hearsay evidence in civil
proceeding if maker available 68
Subdivision 3 -- Other exceptions to hearsay rule
83. Exception: business records 69
84. Exception: content of tags, labels and writing 70
85. Exception: electronic communication 71
86. Exception: Aboriginal and Torres Strait Islander
traditional laws and customs 71
87. Exception: reputation as to relationships and age 71
88. Exception: reputation of public or general rights 72
89. Exception: interlocutory proceedings 72
Division 3 -- Opinion
90. Opinion rule 73
91. Exception: evidence relevant otherwise than as
opinion evidence 73
92. Exception: lay opinions 74
93. Exception: Aboriginal and Torres Strait Islander
traditional laws and customs 74
94. Exception: opinions based on specialised
knowledge 74
95. Ultimate issue and common knowledge rules
abolished 75
page iv
Evidence Bill 2024
Contents
Division 4 -- Admissions
96. Hearsay and opinion rules: exception for
admissions and related representations 75
97. Exclusion of evidence of admissions that is not
first-hand 76
98. Exclusion of evidence of admissions as against
third parties 76
99. Exclusion of admissions influenced by violence
and certain other conduct 77
100. Criminal proceedings: reliability of admissions by
accused 77
101. Criminal proceedings: exclusion of records of oral
questioning 78
102. Admissions made with authority 79
103. Proof of admissions 80
104. Criminal proceedings: evidence of silence 80
105. Criminal proceedings: discretion to exclude
admissions 81
106. Criminal investigation rules about admissions not
affected 81
Division 5 -- Evidence of judgments and
convictions
107. Exclusion of evidence of judgments and
convictions 81
108. Exceptions 82
109. Savings 83
Division 6 -- Tendency and coincidence
110. Application of Division 83
111. Use of evidence for other purposes 84
112. Failure to act 84
113. The tendency rule 84
114. Admissibility of tendency evidence in proceeding
involving child sexual offence 85
115. The coincidence rule 87
116. Requirements for notices 88
117. Court may dispense with notice requirements 89
118. Further restrictions on tendency evidence and
coincidence evidence adduced by prosecution 90
page v
Evidence Bill 2024
Contents
Division 7 -- Credibility
Subdivision 1 -- Preliminary
119. Term used: credibility evidence 90
Subdivision 2 -- Credibility of witnesses
120. Credibility rule 91
121. Exception: cross-examination as to credibility 91
122. Further protections: cross-examination of accused 92
123. Exception: rebutting denials by other evidence 93
124. Exception: re-establishing credibility 94
Subdivision 3 -- Credibility of persons who are not
witnesses
125. Admissibility of evidence of credibility of person
who has made previous representation 94
126. Further protections: previous representations of
accused who is not witness 95
Subdivision 4 -- Persons with specialised knowledge
127. Exception: evidence of persons with specialised
knowledge 96
Division 8 -- Character
128. Application 97
129. Evidence about character of accused 97
130. Evidence about character of co-accused 98
131. Leave required to cross-examine about character of
accused or co-accused 98
Division 9 -- Identification evidence
132. Application of Division 99
133. Terms used 99
134. Exclusion of certain police-assisted identification
evidence 100
135. Directions to jury 101
Division 10 -- Evidence of family violence
Subdivision 1 -- Preliminary
136. Terms used 101
137. What may constitute evidence of family violence 102
Subdivision 2 -- Admissibility of evidence of family
violence
138. Expert evidence of family violence 103
139. Evidence of family violence: general provision 104
page vi
Evidence Bill 2024
Contents
140. Evidence of family violence: self-defence 104
Subdivision 3 -- Directions relating to family
violence in criminal proceedings
141. Request for direction on family violence:
self-defence 105
142. Request for direction on family violence: general 105
143. Content of direction on family violence:
self-defence 106
144. Content of direction on family violence: general 107
145. Application to criminal proceeding without jury 109
146. Other directions may be given 110
Subdivision 4 -- Application to civil proceedings
147. Court may take into account family violence
direction matters 110
Part 4 -- Privileges
Division 1 -- Client legal privilege
148. Terms used 111
149. Legal advice 113
150. Litigation 113
151. Unrepresented parties 114
152. Loss of client legal privilege: generally 115
153. Loss of client legal privilege: consent and related
matters 115
154. Loss of client legal privilege: accused 117
155. Loss of client legal privilege: joint clients 117
156. Loss of client legal privilege: misconduct 118
157. Loss of client legal privilege: related
communications and documents 119
Division 2 -- Professional confidential
relationship privilege
158. Terms used 119
159. Exclusion of evidence of protected confidences 120
160. Loss of professional confidential relationship
privilege: consent 122
161. Loss of professional confidential relationship
privilege: misconduct 122
162. Ancillary orders 123
page vii
Evidence Bill 2024
Contents
163. Relationship between this Division and other
privileges 123
Division 3 -- Counselling communications
relating to sexual offences
164. Terms used 124
165. Counselling communications that are protected
communications 125
166. Protected communications not to be disclosed 126
167. Application for leave 127
168. Hearing of application 128
169. Test to be applied by court 129
170. Establishing legitimate forensic purpose 130
171. Public interest test 131
172. Effect of consent 132
173. Loss of privilege: misconduct 132
174. Ancillary orders 133
175. Application of other laws 134
176. Application to civil proceedings 134
177. Regulations 134
Division 4 -- Journalist privilege
178. Application of Division 135
179. Terms used 135
180. Journalist privilege relating to identity of informant 137
181. Exclusion of journalist privilege: public interest
test 137
182. Special consideration: misconduct 138
183. Application of journalist privilege to preliminary
proceedings 140
184. Ancillary orders 140
Division 5 -- Self-incrimination
185. Terms used 141
186. Privilege in respect of self-incrimination in other
proceedings 142
187. Effect of evidence certificate 143
188. Privilege in respect of self-incrimination:
disclosure orders 144
189. Effect of disclosure certificate 146
190. Court may restrict publication of evidence 147
page viii
Evidence Bill 2024
Contents
191. Self-incrimination: witnesses in public revenue
proceedings 148
Division 6 -- Evidence excluded in the public
interest
192. Exclusion of evidence of reasons for judicial and
other decisions 149
193. Exclusion of evidence of matters of state 151
194. Exclusion of evidence of settlement negotiations 153
Division 7 -- General
195. Court to inform of rights to make applications and
objections 155
196. Court may inspect documents 155
197. Inadmissibility of evidence that must not be
adduced or given 156
198. Derogation of privilege in civil proceedings 156
199. No privilege against self-incrimination for bodies
corporate 157
200. No confessional privilege in proceedings relating
to child sexual offences or sexual abuse 157
Part 5 -- Exclusion of evidence
201. General discretion to exclude evidence 159
202. General discretion to limit use of evidence 159
203. Exclusion of prejudicial evidence in criminal
proceeding 159
204. Exclusion of improperly or illegally obtained
evidence 159
205. Cautioning of persons 161
206. Exclusion of certain evidence relating to
complainant 163
Part 6 -- Special arrangements for
taking evidence
Division 1 -- Use of video links and audio links
by WA courts and recognised courts
207. Terms used 165
208. WA court may take evidence by video link or
audio link 165
209. Counsel entitled to practise 166
page ix
Evidence Bill 2024
Contents
210. Recognised court may take evidence or receive
submission in this State 167
211. Privileges, protection and immunity of participants
in proceeding in recognised court 168
212. Recognised court may administer oath in this State 169
213. Assistance to recognised court 169
214. Contempt of recognised court 170
215. Operation of other laws 170
Division 2 -- Examination of witnesses outside
the State
216. Terms used 171
217. Court may make extra-territorial examination order 172
218. Admission of evidence taken under extra-territorial
examination order 173
219. Operation of other laws 175
220. Regulations and rules of court 175
Division 3 -- Assistance to other Australian
courts and foreign courts
221. Terms used 175
222. Application to Supreme Court for assistance 176
223. Supreme Court may make order to assist in
obtaining evidence 176
224. Privilege of witnesses 178
225. Rules of court 179
226. Offence of giving false testimony 179
227. Operation of other laws not excluded 180
Part 7 -- Witness assistance
measures
Division 1 -- Preliminary
228. Terms used 181
229. Witnesses who must be treated as special witness 182
230. Witnesses who may be declared to be special
witness 183
Division 2 -- Support and communication
assistance for children and special
witnesses
231. Use of support person 185
232. Use of support animal 185
page x
Evidence Bill 2024
Contents
233. Use of communicator 186
Division 3 -- Admission of out-of-court
representations
234. Application of Division 187
235. Term used: out-of-court representation 187
236. Admission of out-of-court representations 188
237. Application of rules of evidence 190
Division 4 -- Admission of recorded statements
238. Application of Division 190
239. Terms used 191
240. Recorded statement admissible as evidence in chief 191
241. Statement admissibility regulations 193
242. Statement must be provided to accused 193
243. Accused must be given opportunity to
cross-examine complainant 194
244. Application of rules of evidence 195
245. Presentation of recorded statement 195
246. Further evidence 196
247. Presence of complainant not required during
presentation of statement 196
248. Warning and comments to jury 197
249. Other regulations 197
Division 5 -- Admission of recorded interviews
250. Application of Division 198
251. Terms used 198
252. Recorded interview admissible as evidence in chief 198
253. Regulations may specify admissibility
requirements for interviews 200
254. Interview must be provided to accused 201
255. Application of rules of evidence 201
256. Presentation of recorded interview 202
257. Further evidence 202
258. Presence of person interviewed not required during
presentation of interview 203
259. Warning and comments to jury 203
260. Other regulations 204
Division 6 -- Pre-recording procedure
261. Terms used 205
262. General provisions about pre-recording orders 205
page xi
Evidence Bill 2024
Contents
263. Circumstances in which pre-recording order may
be made 206
264. Conduct of special hearing 208
265. Restrictions on persons who may be present at
special hearing 208
266. Alternative arrangements for attendance at special
hearing 209
267. Use of recorded statement or interview at special
hearing 210
268. Admissibility of recording of evidence taken at
special hearing 210
269. Presentation of recording of evidence 211
270. Presence of witness not required during
presentation of recording of evidence 212
271. Witness may be required to give further evidence 212
272. Identification of accused 213
273. Warning to jury 214
Division 7 -- Video link separation and
screening procedures
274. Application of Division 214
275. Terms used 214
276. General provisions about video link separation
orders 214
277. Circumstances in which video link separation
procedure is mandatory 216
278. Other circumstances in which video link separation
procedure may be used 217
279. Access to legal counsel 218
280. Evidence of witness to be recorded 218
281. Use of screening procedure 219
282. Identification of accused 219
283. Instruction to jury 220
Division 8 -- Communication directions
284. Term used: communication directions 220
285. Communication directions relating to witnesses 220
286. Ground rules hearing 221
287. Timing of ground rules hearing 222
288. Conduct of ground rules hearing 222
289. Other powers of court not affected 222
page xii
Evidence Bill 2024
Contents
Division 9 -- Access to and use of protected
recordings
290. Terms used 223
291. Possessing or supplying protected recordings 223
292. Altering or destroying original protected recording 225
293. Altering copy of protected recording 225
294. Copying protected recording 226
295. Playing protected recordings 226
296. Protected recordings may be played for
instructional purposes 228
297. Publication of protected recordings prohibited 228
298. Playing or tendering altered versions of protected
recordings in proceedings 229
299. Court may give directions about protected
recordings 229
Division 10 -- Miscellaneous
300. Hearing to consider orders that should be made 230
301. Disclosure of protected communications in
connection with support measures 230
302. Dispensing with special procedure for giving
evidence 232
Part 8 -- Proof
Division 1 -- Standard of proof
303. Civil proceeding: standard of proof 233
304. Criminal proceeding: standard of proof 233
305. Admissibility of evidence: standard of proof 233
Division 2 -- Corroboration
306. Corroboration not required 234
Division 3 -- Warnings and information
307. Unreliable evidence 235
308. Warnings about evidence given by children 236
309. Warnings about delays causing forensic
disadvantage 237
310. Prohibited directions about delays in complaint
about sexual and family violence offences 238
311. Required direction for delays in complaint about
sexual and family violence offences 239
page xiii
Evidence Bill 2024
Contents
Division 4 -- Requests between parties relating
to evidence
312. Application of Division 240
313. Term used: request 240
314. Requests may be made about certain matters 241
315. Time limits for making requests 242
316. Failure or refusal to comply with requests 243
Part 9 -- Judicial notice and
facilitation of proof
Division 1 -- Matters of common knowledge
317. Judicial notice to be taken of matters of common
knowledge 246
Division 2 -- Proof of laws
318. Judicial notice to be taken of Australian laws 247
319. Proof of laws of foreign countries 248
320. Evidence of law reports of foreign countries 249
321. Questions of foreign law to be decided by judge 249
Division 3 -- Proof of public documents and
other official matters
322. Presumption as to authenticity of official
publications 250
323. Presumption as to regularity of acts notified in
official publications 250
324. Presumption as to authenticity of Parliamentary
documents 251
325. Presumption as to authenticity of Commonwealth
records and public documents 252
326. Presumption as to authenticity of copies, extracts
and summaries of public documents 253
327. Presumption as to authenticity of official seals and
signatures 254
328. Proof of public documents of other States or
Territories 255
329. Proof of public documents relating to judgments,
acts and processes of courts 256
330. Proof of official statistics 257
page xiv
Evidence Bill 2024
Contents
Division 4 -- Proof of other matters relating to
documents and things
331. Presumption relating to documents and things
produced by processes and devices 257
332. Presumption relating to business documents
produced by processes and devices 258
333. Findings about accuracy of documents produced
by devices and processes 259
334. Presumption as to documents attested by justices,
lawyers and notaries public 260
335. Testimony of attesting witness not required 260
336. Presumption as to documents produced from
proper custody 261
337. Proof of foreign documents admissible in foreign
countries 261
Division 5 -- Proof of communications
338. Presumption relating to receipt of postal articles 262
339. Presumptions relating to electronic
communications 262
340. Presumption relating to receipt of lettergrams and
telegrams 263
Division 6 -- Proof of matters relating to
documents or things by affidavit or
written statement
341. Application of Division 264
342. Persons who may give evidence 265
343. Form in which evidence may be given 266
344. Evidence based on knowledge, belief or
information 266
345. Notification of other parties 267
Division 7 -- Proof of other matters by
certificate or affidavit
346. Certificate of expert evidence 267
347. Certificate evidence of convictions, acquittals,
sentences and other court matters 268
348. Affidavit evidence of identity of convicted persons
by State and Territory police 270
349. Affidavit evidence of identity of convicted persons
by AFP employees and special members 270
page xv
Evidence Bill 2024
Contents
350. DNA profile certificates 271
351. Procedure for using DNA profile certificates 273
352. Proof of service of statutory notifications, notices,
orders and directions 274
Division 8 -- Proof of particular matters in
criminal proceeding
353. Depositions on 1 charge admissible on trial of
another 275
354. Proof of intention to injure, deceive or defraud 275
355. Evidence of stealing or receiving property from
aircraft, vehicle, vessel or related premises 275
356. Proof of stealing money 277
Part 10 -- Miscellaneous
357. Inferences 278
358. Accused may admit matters and give consents 278
359. Impounding documents 278
360. Preliminary questions 279
361. Waiver of rules of evidence 281
362. Agreements as to facts 282
363. Leave, permission or direction may be subject to
conditions 282
364. Advance rulings and findings 283
365. Additional powers of court in relation to discovery
and disclosure 283
366. Additional power to make rules of court 284
367. Witness who fails to attend proceeding 285
368. Prohibited question not to be published 286
369. Identity of certain witnesses not to be published 287
370. Customs prosecutions 289
371. Regulations 289
372. Review of Act 290
373. Review of provisions relating to recorded
statements 290
Part 11 -- Repeal, savings and
transitional provisions
Division 1 -- Repeals
374. Evidence Act 1906 repealed 291
375. Regulations under Evidence Act 1906 repealed 291
page xvi
Evidence Bill 2024
Contents
Division 2 -- Savings and transitional
provisions
376. Terms used 291
377. Application of Act to proceedings 292
378. Documents served or given 293
379. Documents and other things examined, copied or
viewed 293
380. Things done between parties 294
381. Identification evidence 294
382. Privileges 294
383. Cautioning of persons 295
384. Out-of-court representations 295
385. Recorded interviews 295
386. Restrictions on use of audio evidence under former
Act 296
387. Restrictions on use of former Act recordings 297
388. Publication of former Act recordings prohibited 298
389. Playing or tendering altered recording in
proceeding 298
390. Power to give directions about former Act
recordings 299
391. Use of Justice documents 299
392. Facilitation of proof of documents 299
393. Admission of police affidavits 299
394. DNA certificates given before commencement 299
395. Restrictions on publishing names of complainants 299
396. Continuation of orders, directions, leave and other
things done under former Act 300
397. Saving of self-incrimination certificates given
under former Act 300
398. Construction of references 300
399. Transitional regulations 301
Part 12 -- Consequential
amendments to other Acts
Division 1 -- Aquatic Resources Management
Act 2016 amended
400. Act amended 303
401. Section 240 amended 303
page xvii
Evidence Bill 2024
Contents
Division 2 -- Australia and New Zealand
Banking Group Act 1970 amended
402. Act amended 303
403. Section 10 deleted 303
404. Section 18 deleted 303
Division 3 -- Australia and New Zealand
Banking Group Limited (NMRB) Act 1991
amended
405. Act amended 304
406. Section 10 amended 304
407. Section 18 amended 304
408. Section 19 amended 304
Division 4 -- Australia and New Zealand
Banking Group Limited (Town & Country)
Act 1995 amended
409. Act amended 304
410. Section 11 amended 304
Division 5 -- Bank of Western Australia
Act 1995 amended
411. Act amended 304
412. Section 33 amended 304
Division 6 -- Child Care Services Act 2007
amended
413. Act amended 305
414. Section 44 amended 305
415. Section 46A inserted 305
46A. Interaction with protections in Evidence
Act 2024 305
Division 7 -- Children and Community Services
Act 2004 amended
416. Act amended 306
417. Section 149 amended 307
418. Section 238A inserted 307
238A. Interaction with protections in Evidence
Act 2024 307
419. Section 239 amended 308
page xviii
Evidence Bill 2024
Contents
Division 8 -- Control of Vehicles (Off-road
Areas) Act 1978 amended
420. Act amended 308
421. Section 28A amended 308
Division 9 -- Corruption, Crime and Misconduct
Act 2003 amended
422. Act amended 309
423. Section 3 amended 309
424. Section 94 amended 309
425. Section 145 amended 309
Division 10 -- The Criminal Code amended
426. Act amended 310
427. Sections 540 and 541 deleted 310
Division 11 -- Criminal Investigation Act 2006
amended
428. Act amended 310
429. Section 48 amended 310
430. Section 118 amended 310
431. Part 11A inserted 311
Part 11A -- Obtaining recorded statements for use
as evidence
124A. Terms used 311
124B. Police officer may obtain recorded
statement for use as evidence 311
124C. Consent of person making statement 312
124D. Recordings to be retained by police 312
432. Section 138 amended 313
433. Section 154 amended 313
434. Section 155 deleted 313
Division 12 -- Criminal Procedure Act 2004
amended
435. Act amended 314
436. Section 42 amended 314
437. Section 64 amended 314
438. Section 88 amended 314
439. Section 98 amended 315
440. Section 137A amended 315
441. Section 137B inserted 315
137B. Restrictions on disclosure of recorded
evidence 315
page xix
Evidence Bill 2024
Contents
442. Section 144 amended 317
443. Section 168 amended 317
444. Section 171 amended 317
445. Section 172 amended 318
446. Schedule 3 clause 2 replaced 318
2. Evidence Act 2024 not affected 318
447. Schedule 3 clause 6 amended 318
448. Schedule 3 clause 7 amended 318
449. Schedule 3 clause 8 inserted 319
8. Access of accused to some recorded
evidence restricted 319
Division 13 -- High Risk Serious Offenders
Act 2020 amended
450. Act amended 320
451. Section 39 amended 320
452. Section 69 amended 320
Division 14 -- Licensed Surveyors Act 1909
amended
453. Act amended 321
454. Section 8B amended 321
455. Third Schedule amended 321
Division 15 -- Restraining Orders Act 1997
amended
456. Act amended 321
457. Section 53B replaced 321
53B. Evidence of children 321
Division 16 -- Spent Convictions Act 1988
amended
458. Act amended 322
459. Section 14 replaced 322
14. Division 4 does not apply to proceedings
in which laws of evidence apply 322
14A. Division 4 does not affect proceedings
under this Act 323
Division 17 -- State Administrative Tribunal
Act 2004 amended
460. Act amended 323
461. Section 32 amended 323
page xx
Evidence Bill 2024
Contents
Division 18 -- Supreme Court Act 1935 amended
462. Act amended 323
463. Section 172 deleted 323
Division 19 -- The Commercial Bank of
Australia Limited (Merger) Act 1982
amended
464. Act amended 324
465. Section 11 amended 324
Division 20 -- The Commercial Banking
Company of Sydney Limited (Merger)
Act 1982 amended
466. Act amended 324
467. Section 10 amended 324
Division 21 -- Westpac Banking Corporation
(Challenge Bank) Act 1996 amended
468. Act amended 324
469. Section 15 amended 324
Division 22 -- Other Acts amended
470. Various references to Evidence Act 1906 amended 325
Defined terms
page xxi
Western Australia
LEGISLATIVE COUNCIL
Evidence Bill 2024
A Bill for
An Act --
• to provide for the law of evidence; and
• to repeal the Evidence Act 1906 and regulations made under that
Act; and
• to make consequential amendments to various Acts.
The Parliament of Western Australia enacts as follows:
page 1
Evidence Bill 2024
Part 1 Preliminary
Division 1 Introduction
s. 1
1 Part 1 -- Preliminary
2 Division 1 -- Introduction
3 1. Short title
4 This is the Evidence Act 2024.
5 2. Commencement
6 This Act comes into operation as follows --
7 (a) Part 1 -- on the day on which this Act receives the
8 Royal Assent;
9 (b) the rest of the Act -- on a day fixed by proclamation,
10 and different days may be fixed for different provisions.
11 Division 2 -- Interpretation
12 3. Terms used
13 (1) In this Act --
14 accused means a person alleged in a prosecution notice or
15 indictment to have committed an offence;
16 admission means a previous representation that is --
17 (a) made by a person who is or becomes a party to a
18 proceeding (including an accused in a criminal
19 proceeding); and
20 (b) adverse to the person's interest in the outcome of the
21 proceeding;
22 asserted fact has the meaning given in section 72(1);
23 audio link means facilities (including telephone) that enable, at
24 the same time --
25 (a) a court at a place to hear a person giving evidence or
26 making a submission at another place and vice versa; or
27 (b) a party at a place to hear a person giving evidence or
28 making a submission in a proceeding at another place;
page 2
Evidence Bill 2024
Preliminary Part 1
Interpretation Division 2
s. 3
1 Australia includes each external Territory;
2 Australian court means --
3 (a) the High Court of Australia; or
4 (b) a court exercising federal jurisdiction; or
5 (c) a court of a State or Territory; or
6 (d) a judge, justice or arbitrator under an Australian law; or
7 (e) a person or body authorised by an Australian law, or by
8 consent of parties, to hear, receive and examine
9 evidence; or
10 (f) a person or body that, in exercising a function under an
11 Australian law, is required to apply the laws of
12 evidence;
13 Australian law means a law of the Commonwealth, a State or a
14 Territory;
15 Australian or overseas proceeding means a proceeding
16 (however described) in an Australian court or a foreign court;
17 Australian Parliament means --
18 (a) the Parliament; or
19 (b) the Parliament of the Commonwealth or of another
20 State; or
21 (c) any present or former Legislative Assembly of a
22 Territory, including the Australian Capital Territory
23 House of Assembly;
24 business has a meaning affected by section 4;
25 case, of a party, means the facts in issue in respect of which the
26 party bears the legal burden of proof;
27 child means --
28 (a) a person under 18 years of age; or
29 (b) a person referred to in paragraph (b), (c) or (d) of the
30 definition of child in the Children's Court of Western
31 Australia Act 1988 section 3(1);
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Evidence Bill 2024
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1 civil proceeding means a proceeding other than a criminal
2 proceeding;
3 client has a meaning affected by section 148(1);
4 co-accused, in relation to an accused in a criminal proceeding,
5 means a person against whom a prosecution has been instituted,
6 but not yet completed or terminated, for --
7 (a) an offence that arose in relation to the same events as
8 those in relation to which the offence for which the
9 accused is being prosecuted arose; or
10 (b) an offence that relates to or is connected with the
11 offence for which the accused is being prosecuted;
12 coincidence evidence means evidence of a kind referred to in
13 section 115(1) that a party seeks to have adduced for the
14 purpose referred to in that subsection;
15 coincidence rule means the rule of evidence provided for by
16 section 115(1);
17 complainant --
18 (a) in relation to an offence, means a person against or in
19 respect of whom the offence was or is alleged to have
20 been committed, attempted or proposed; and
21 (b) in a criminal proceeding, means the person against or in
22 respect of whom the offence the subject of the
23 proceeding was or is alleged to have been committed,
24 attempted or proposed;
25 court means --
26 (a) the High Court of Australia; or
27 (b) a WA court;
28 credibility, of a person who has made a representation that has
29 been admitted in evidence --
30 (a) means the credibility of the representation; and
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1 (b) includes the person's ability to observe or remember
2 facts and events about which the person made the
3 representation;
4 credibility, of a witness --
5 (a) means the credibility of any part or all of the evidence of
6 the witness; and
7 (b) includes the witness's ability to observe or remember
8 facts and events about which the witness has given, is
9 giving or is to give evidence;
10 credibility rule means the rule of evidence provided for by
11 section 120;
12 criminal or identified organisation means --
13 (a) a criminal organisation as defined in The Criminal Code
14 section 221D(1); or
15 (b) an organisation named in the Criminal Law (Unlawful
16 Consorting and Prohibited Insignia) Act 2021
17 Schedule 2;
18 criminal or identified organisation offence means an offence
19 alleged to have been committed --
20 (a) by a person who, at the time of the commission of the
21 alleged offence, is alleged to have been a member of a
22 criminal or identified organisation; or
23 (b) at the direction of a criminal or identified organisation;
24 or
25 (c) in association with 1 or more members of a criminal or
26 identified organisation (whether or not those members
27 are or have been charged with, or convicted of, the
28 offence); or
29 (d) for the benefit of a criminal or identified organisation;
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1 criminal proceeding --
2 (a) means a prosecution for an offence, other than a
3 prescribed taxation offence as defined in the Taxation
4 Administration Act 1953 (Commonwealth) section 8A;
5 and
6 (b) includes the following stages of a prosecution --
7 (i) a proceeding for the committal of a person for
8 trial or sentence for the offence;
9 (ii) a proceeding relating to bail;
10 cross-examination has the meaning given in section 5(2);
11 cross-examiner means a party who is cross-examining a
12 witness;
13 delay, in making a complaint, includes --
14 (a) a failure to pursue or to continue to pursue a complaint
15 in a timely manner; and
16 (b) a failure to make a complaint at the first opportunity, or
17 on a subsequent opportunity, to complain;
18 disability includes the following --
19 (a) mental impairment;
20 (b) a developmental disorder;
21 (c) a neurological disorder;
22 (d) a physical disability;
23 document has the meaning given in section 6(1) and (2);
24 electronic communication has the meaning given in the
25 Electronic Transactions Act 2011 section 5(1);
26 examination in chief has the meaning given in section 5(1);
27 external Territory has the meaning given in the Acts
28 Interpretation Act 1901 (Commonwealth) section 2B;
29 family violence has the meaning given in the Restraining
30 Orders Act 1997 section 5A;
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s. 3
1 family violence offence means an offence that involves family
2 violence or the threat of, or attempted, family violence;
3 foreign court means any court (including any person or body
4 authorised to take or receive evidence, whether on behalf of a
5 court or otherwise and whether or not the person or body has
6 power to require the answering of questions or the production of
7 documents) of a foreign country or a part of a foreign country;
8 government or official gazette includes the Gazette;
9 government or official website includes the WA legislation
10 website;
11 ground rules hearing has the meaning given in section 286(1);
12 harm includes actual physical bodily harm, financial loss, stress
13 or shock, damage to reputation or emotional or psychological
14 harm (such as shame, humiliation and fear);
15 hearsay rule means the rule of evidence provided for by
16 section 72(1);
17 identification evidence has the meaning given in section 133;
18 investigating official means --
19 (a) a police officer (other than a police officer who is
20 engaged in covert investigations under the orders of a
21 superior); or
22 (b) a person appointed by or under an Australian law (other
23 than a person who is engaged in covert investigations
24 under the orders of a superior) whose functions include
25 functions in respect of the prevention or investigation of
26 offences;
27 judge, in relation to a proceeding, means the judge, magistrate
28 or other person before whom the proceeding is being held;
29 law, of the State, the Commonwealth, another State, a Territory
30 or a foreign country, has the meaning given in section 10;
31 leading question means a question asked of a witness that --
32 (a) directly or indirectly suggests a particular answer to the
33 question; or
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s. 3
1 (b) assumes the existence of a fact the existence of which is
2 in dispute in the proceeding and as to the existence of
3 which the witness has not given evidence before the
4 question is asked;
5 legal counsel means --
6 (a) a legal practitioner; or
7 (b) a lawyer employed in or by a government agency or
8 other body who by law is exempted from holding an
9 Australian practising certificate (as defined in the Legal
10 Profession Uniform Law (WA) section 6(1)), or who
11 does not require an Australian practising certificate, to
12 engage in legal practice in the course of that
13 employment;
14 mental impairment has the meaning given in the Criminal Law
15 (Mental Impairment) Act 2023 section 9(1);
16 minister of religion --
17 (a) means a person who is recognised in accordance with
18 the practices of a faith or religion as a person who is
19 authorised to conduct services or ceremonies in
20 accordance with the tenets of the faith or religion; and
21 (b) includes such a person regardless of how the person's
22 position or title is described (for example, member of
23 the clergy, priest, minister, imam, rabbi or pastor);
24 offence --
25 (a) means an offence against or arising under an Australian
26 law; and
27 (b) includes an alleged offence;
28 offspring, of a person, has the meaning given in section 13(1);
29 opinion rule means the rule of evidence provided for by
30 section 90(1);
31 parent, of a person, has a meaning affected by section 13;
32 party, in a criminal proceeding, includes an accused;
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s. 3
1 person acting judicially --
2 (a) means any person or body having, in this State, by law
3 or by consent of the parties, authority to hear, receive
4 and examine evidence; but
5 (b) does not include the State Administrative Tribunal or a
6 member of the State Administrative Tribunal exercising
7 the jurisdiction of the Tribunal;
8 police officer means --
9 (a) a member or special member of the Australian Federal
10 Police; or
11 (b) a member of the police force of a State or Territory;
12 previous representation means a representation made otherwise
13 than in the course of giving evidence in the proceeding in which
14 evidence of the representation is sought to be adduced;
15 prior consistent statement, of a witness, means a previous
16 representation that is consistent with evidence given by the
17 witness;
18 prior inconsistent statement, of a witness, means a previous
19 representation that is inconsistent with evidence given by the
20 witness;
21 probative value, of evidence, means the extent to which the
22 evidence could rationally affect the assessment of the
23 probability of the existence of a fact in issue;
24 proceeding includes a proceeding that --
25 (a) relates to bail; or
26 (b) is an interlocutory proceeding or proceeding of a similar
27 kind; or
28 (c) is heard in chambers; or
29 (d) relates to sentencing;
30 prosecutor means a person who institutes or is responsible for
31 the conduct of a prosecution;
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Evidence Bill 2024
Part 1 Preliminary
Division 2 Interpretation
s. 3
1 protected communication has the meaning given in
2 section 165(1);
3 public document has the meaning given in section 6(3) and (4);
4 publish means to disseminate to the public or a section of the
5 public by any means, including the following --
6 (a) in a newspaper or periodical publication;
7 (b) by radio broadcast, television, a website, an online
8 facility or other electronic means;
9 re-examination has the meaning given in section 5(3);
10 related proceeding, in relation to another proceeding, means --
11 (a) a retrial or rehearing of the other proceeding; or
12 (b) a proceeding by way of appeal from, or judicial review
13 of, a decision made or penalty imposed in the other
14 proceeding;
15 representation includes the following --
16 (a) an express or implied representation (whether oral or in
17 writing);
18 (b) a representation to be inferred from conduct;
19 (c) a representation not intended by its maker to be
20 communicated to or seen by another person;
21 (d) a representation that for any reason is not
22 communicated;
23 screening procedure means a procedure that involves the use of
24 a screen, one-way glass or other device in relation to a witness
25 while the witness gives evidence in a proceeding so that --
26 (a) the witness cannot see a party to the proceeding; and
27 (b) the witness can be seen by the judge, the jury (if any),
28 each party to the proceeding and each party's legal
29 counsel (if any);
30 seal includes a stamp;
31 sexual abuse includes any misconduct of a sexual nature;
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Evidence Bill 2024
Preliminary Part 1
Interpretation Division 2
s. 3
1 sexual offence means the following --
2 (a) an offence under The Criminal Code Chapter XXXI;
3 (b) an offence of a sexual nature under The Criminal Code
4 Chapter XXII, XXV, XXVA or XXXIIIB;
5 (c) an offence under a provision of The Criminal Code or
6 another written law that has been repealed, if the acts or
7 omissions that constituted the offence under the repealed
8 provision would constitute an offence referred to in
9 paragraph (a) or (b);
10 (d) any other offence of a sexual nature --
11 (i) including an offence under The Criminal Code
12 section 306 or the Children and Community
13 Services Act 2004 section 192; but
14 (ii) not including conduct of a person that has ceased
15 to be an offence against, or arising under, a law
16 of this State since the time when the person
17 engaged in the conduct;
18 (e) an offence of attempting to commit, conspiring with
19 another person to commit, inciting another person to
20 commit or attempting to procure another person to
21 commit, an offence referred to in paragraph (a), (b), (c)
22 or (d);
23 sexual offence complainant means a complainant in relation to
24 a sexual offence;
25 special witness has the meaning given in section 228(1);
26 superior court means the Supreme Court, the District Court or
27 the Family Court, except when exercising federal jurisdiction;
28 tendency evidence means evidence of a kind referred to in
29 section 113(1) that a party seeks to have adduced for the
30 purpose referred to in that subsection;
31 tendency rule means the rule of evidence provided for by
32 section 113(1);
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s. 3
1 traditional laws and customs, of an Aboriginal or Torres Strait
2 Islander group (including a kinship group), includes any of the
3 traditions, customary laws, customs, observances, practices,
4 knowledge and beliefs of the group;
5 tribunal, of a State or Territory, means a person or body
6 authorised by or under a law of the State or Territory to take
7 evidence on oath or affirmation;
8 video link means facilities (including closed-circuit television)
9 that enable, at the same time --
10 (a) a court at a place to see and hear a person giving
11 evidence or making a submission at another place and
12 vice versa; or
13 (b) a party at a place to see and hear a person giving
14 evidence or making a submission in a proceeding at
15 another place;
16 video link separation procedure means a procedure for giving
17 evidence under which --
18 (a) a witness gives evidence at a separate place to the
19 courtroom, while the evidence is transmitted to the
20 courtroom by means of a video link; or
21 (b) a party is required to remain in a separate place to the
22 courtroom while a witness gives evidence in the
23 courtroom and the evidence of the witness is transmitted
24 by means of video link to the place in which the party
25 remains while the evidence is given;
26 WA court means --
27 (a) the Supreme Court, the District Court, the Children's
28 Court, the Family Court, the Magistrates Court, a
29 warden's court under the Mining Act 1978 or a court of
30 summary jurisdiction (as defined in the Criminal
31 Procedure Act 2004 section 3(1)); or
32 (b) the Coroner's Court of Western Australia; or
33 (c) any other court created by Parliament; or
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Evidence Bill 2024
Preliminary Part 1
Interpretation Division 2
s. 3
1 (d) any person or body that, in exercising a function under a
2 written law, is required to apply the laws of evidence;
3 WA tribunal --
4 (a) means a tribunal established in this State under a written
5 law; but
6 (b) does not include the State Administrative Tribunal;
7 witness includes --
8 (a) a party giving evidence; and
9 (b) a person who is to give evidence as a witness in a
10 proceeding.
11 (2) A reference in this Act to a witness who has been called by a
12 party to give evidence includes a reference to the party giving
13 evidence.
14 (3) In this Act --
15 (a) a reference to a person appointed or holding office under
16 or because of a law of the State or another Australian
17 law includes a reference to an employee as defined in
18 the Public Sector Management Act 1994 section 3(1);
19 and
20 (b) a reference to a person appointed or holding office under
21 or because of a law of the Commonwealth or another
22 Australian law includes a reference to an APS employee
23 as defined in the Public Service Act 1999
24 (Commonwealth) section 7; and
25 (c) for the purposes of paragraphs (a) and (b), a reference to
26 an office is a reference to the position occupied by the
27 employee concerned.
28 (4) Without limiting the effect of the Interpretation Act 1984
29 section 19, the material that may be considered in accordance
30 with that section in the interpretation of a provision of this Act
31 includes any relevant report of a Law Reform Commission laid
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Evidence Bill 2024
Part 1 Preliminary
Division 2 Interpretation
s. 4
1 before either House of the Parliament of the Commonwealth
2 before the provision was enacted.
3 Note for this section:
4 The Evidence Act 1995 (Commonwealth) sets out a law of evidence
5 that is the basis for similar (but not identical) Acts that have been
6 enacted in some States and Territories. These Acts are referred to as
7 the uniform evidence law (UEL).
8 Parts of this Act are based on UEL provisions, as in force at
9 1 June 2024.
10 Parts of this Act are based on provisions of the Evidence Act 1906,
11 which is repealed by this Act.
12 A note that compares a provision of this Act to a specified provision of
13 the UEL or the Evidence Act 1906 indicates that the provision of this
14 Act is based (in whole or in part, and with possible modifications) on
15 the specified provision.
16 Compare:
17 Evidence Act 1906 s. 3, 109 and 120
18 Evidence Act 1995 (Commonwealth) Dictionary
19 4. References to businesses
20 (1) A reference in this Act to a business includes a reference to the
21 following --
22 (a) a profession, calling, occupation, trade or undertaking;
23 (b) an activity engaged in or carried on by the Crown in any
24 of its capacities;
25 (c) an activity engaged in or carried on by the government
26 of a foreign country;
27 (d) an activity engaged in or carried on by a person or body
28 holding office or exercising power under or because of
29 the Commonwealth Constitution, an Australian law or a
30 law of a foreign country, being an activity engaged in or
31 carried on in the performance of the functions of the
32 office or in the exercise of the power (otherwise than in
33 a private capacity);
34 (e) the proceedings of an Australian Parliament, a House of
35 an Australian Parliament, a committee of a House of an
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Evidence Bill 2024
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s. 5
1 Australian Parliament or a committee of an Australian
2 Parliament;
3 (f) the proceedings of a legislature of a foreign country,
4 including a House or committee (however described) of
5 a legislature of a foreign country.
6 (2) A reference in this Act to a business also includes a reference
7 to --
8 (a) a business that is not engaged in or carried on for profit;
9 or
10 (b) a business engaged in or carried on outside Australia.
11 Compare:
12 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 1
13 5. Examination in chief, cross-examination and re-examination
14 (1) The examination in chief of a witness is the questioning of a
15 witness by the party who called the witness to give evidence,
16 not being questioning that is re-examination.
17 (2) The cross-examination of a witness is the questioning of a
18 witness by a party other than the party who called the witness to
19 give evidence.
20 (3) The re-examination of a witness is the questioning of a witness
21 by the party who called the witness to give evidence, being
22 questioning (other than further examination in chief with the
23 leave of the court) conducted after the cross-examination of the
24 witness by another party.
25 (4) If a party recalls a witness who has already given evidence, the
26 questioning of the witness by that party before the witness is
27 questioned by another party is taken to be part of the
28 examination in chief and not a re-examination of the witness.
29 Compare:
30 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 2
page 15
Evidence Bill 2024
Part 1 Preliminary
Division 2 Interpretation
s. 6
1 6. References to documents
2 (1) A document is any record of information and includes the
3 following --
4 (a) anything on which there is writing;
5 (b) anything on which there are marks, figures, symbols or
6 perforations having a meaning for persons qualified to
7 interpret them;
8 (c) anything from which sounds, images or writings can be
9 reproduced with or without the aid of anything else;
10 (d) a map, plan, drawing or photograph.
11 (2) A document also includes the following --
12 (a) any part of the document;
13 (b) any copy, reproduction or duplicate of the document or
14 of any part of the document;
15 (c) any part of a copy, reproduction or duplicate of a
16 document.
17 (3) A public document is a document that --
18 (a) forms part of the records of the Crown in any of its
19 capacities; or
20 (b) forms part of the records of the government of a foreign
21 country; or
22 (c) forms part of the records of a person or body holding
23 office or exercising a function under or because of the
24 Commonwealth Constitution, an Australian law or a law
25 of a foreign country; or
26 (d) is being kept by or on behalf of the Crown, a
27 government of a foreign country or a person or body
28 referred to in paragraph (c).
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Evidence Bill 2024
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Interpretation Division 2
s. 7
1 (4) A public document includes the records of the proceedings of,
2 and papers presented to --
3 (a) an Australian Parliament, a House of an Australian
4 Parliament, a committee of a House of an Australian
5 Parliament or a committee of an Australian Parliament;
6 and
7 (b) a legislature of a foreign country, including a House or
8 committee (however described) of a legislature of a
9 foreign country.
10 Compare:
11 Evidence Act 1995 (Commonwealth) Dictionary Part 1 and Part 2 cl. 8
12 7. Representations made in documents
13 For the purposes of this Act, a representation contained in a
14 document is taken to have been made by a person if --
15 (a) the document was written, made or otherwise produced
16 by the person; or
17 (b) the representation was recognised or acknowledged by
18 the person as the person's representation by signing,
19 initialling or otherwise marking the document.
20 Compare:
21 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 6
22 8. References to availability of documents and things
23 For the purposes of this Act, a document or thing is taken not to
24 be available to a party if and only if --
25 (a) it cannot be found after reasonable inquiry and search by
26 the party; or
27 (b) it was destroyed by the party, or by a person on behalf
28 of the party, otherwise than in bad faith, or was
29 destroyed by another person; or
30 (c) it would be impractical to produce the document or
31 thing during the course of the proceeding; or
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Evidence Bill 2024
Part 1 Preliminary
Division 2 Interpretation
s. 9
1 (d) production of the document or thing during the course of
2 the proceeding could render a person liable to conviction
3 for an offence; or
4 (e) it is not in the possession or under the control of the
5 party and --
6 (i) it cannot be obtained by any judicial procedure
7 of the court; or
8 (ii) it is in the possession or under the control of
9 another party to the proceeding concerned who
10 knows or might reasonably be expected to know
11 that evidence of the contents of the document, or
12 evidence of the thing, is likely to be relevant in
13 the proceeding; or
14 (iii) it was in the possession or under the control of
15 another party to the proceeding concerned at a
16 time when that party knew or might reasonably
17 be expected to have known that evidence of the
18 contents of the document, or evidence of the
19 thing, was likely to be relevant in the proceeding.
20 Compare:
21 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 5
22 9. References to availability to give evidence
23 (1) For the purposes of this Act, a person is taken not to be
24 available to give evidence about a fact if --
25 (a) the person is dead; or
26 (b) the person is, for any reason other than the application
27 of section 26, not competent to give the evidence; or
28 (c) the person is mentally or physically unable to give the
29 evidence and it is not reasonably practicable to
30 overcome that inability; or
31 (d) the person objects to giving the evidence under
32 section 28 and that objection is upheld; or
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Evidence Bill 2024
Preliminary Part 1
Interpretation Division 2
s. 10
1 (e) it would be unlawful for the person to give the evidence;
2 or
3 (f) a provision of this Act prohibits the evidence being
4 given; or
5 (g) all reasonable steps have been taken, by the party
6 seeking to prove the person is not available, to find the
7 person or secure the person's attendance, without
8 success; or
9 (h) all reasonable steps have been taken, by the party
10 seeking to prove the person is not available, to compel
11 the person to give the evidence, without success.
12 (2) In all other cases, the person is taken to be available to give
13 evidence about the fact.
14 (3) In deciding whether a person is not available to give evidence
15 under subsection (1)(b) or (c), a court may inform itself as it
16 thinks fit.
17 Compare:
18 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 4
19 10. References to laws
20 (1) A reference in this Act to a law of the State is a reference to a
21 written law or an unwritten law of, or in force in, the State.
22 (2) A reference in this Act to a law of the Commonwealth, another
23 State, a Territory or a foreign country is a reference to a law
24 (whether in the nature of a written law or an unwritten law) of,
25 or in force in, that place.
26 (3) A reference in this Act to an Australian law is a reference to an
27 Australian law (whether in the nature of a written law or an
28 unwritten law) of, or in force in, Australia.
29 Compare:
30 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 9
page 19
Evidence Bill 2024
Part 1 Preliminary
Division 2 Interpretation
s. 11
1 11. References to criminal proceedings
2 (1) A reference in this Act to a criminal proceeding for a particular
3 offence is a reference to a criminal proceeding in which a
4 person stands charged with that offence --
5 (a) whether or not the person is charged with that offence
6 alone or together with another offence (as an alternative
7 or additional count); and
8 (b) whether or not the person is liable on the charge to be
9 found guilty of any other offence.
10 (2) If a provision of this Act applies to a criminal proceeding for a
11 particular offence it also applies to any related proceeding,
12 unless the contrary intention appears.
13 Compare:
14 Evidence Act 1906 s. 36A and Schedule 7 Part A cl. 1
15 12. References to civil penalties
16 For the purposes of this Act, a person is taken to be liable to a
17 civil penalty if, in an Australian or overseas proceeding (other
18 than a criminal proceeding), the person would be liable to a
19 penalty arising under an Australian law or a law of a foreign
20 country.
21 Compare:
22 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 3
23 13. References to offspring and parents
24 (1) A person of any age is the offspring of another person if the
25 other person is the person's parent.
26 (2) A parent, in relation to a child, includes a person who acts as a
27 parent to the child and with whom the child lives as if the child
28 were a member of the person's family.
29 Compare:
30 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 10
page 20
Evidence Bill 2024
Preliminary Part 1
Application of Act Division 3
s. 14
1 Division 3 -- Application of Act
2 14. Application of Act
3 This Act applies to all proceedings in a court.
4 Compare:
5 Evidence Act 1906 s. 4
6 Evidence Act 1995 (Commonwealth) s. 4
7 15. Extended application of certain provisions
8 (1) A provision of this Act applies to a proceeding before a
9 WA tribunal or a person acting judicially, whether or not the
10 tribunal or person acting judicially is a court, if this Act
11 expressly provides that the provision extends to a proceeding
12 before a WA tribunal or a person acting judicially.
13 (2) If a provision of this Act extends to a proceeding before a WA
14 tribunal or a person acting judicially, a reference in the
15 provision to a court or a WA court includes a reference to a WA
16 tribunal, or a person acting judicially, as the case requires.
17 Examples for this section:
18 1. Section 208, which permits evidence to be taken by video link or
19 audio link, extends to a proceeding before a WA tribunal.
20 2. Sections 318, 322 to 330 and 337, which facilitate proof of certain
21 matters in proceedings, extend to a proceeding before a person
22 acting judicially.
23 Compare:
24 Evidence Act 1995 (Commonwealth) s. 5
25 16. Electronic processes facilitation
26 The Courts and Tribunals (Electronic Processes Facilitation)
27 Act 2013 Part 2 applies to this Act.
28 Compare:
29 Evidence Act 1906 s. 5A
page 21
Evidence Bill 2024
Part 1 Preliminary
Division 3 Application of Act
s. 17
1 17. Act binds Crown
2 This Act binds the Crown in right of Western Australia and, so
3 far as the legislative power of the Parliament permits, the Crown
4 in all its other capacities.
5 18. Operation of other Acts
6 This Act does not affect the operation of the provisions of any
7 other Act.
8 Compare:
9 Evidence Act 1995 (New South Wales) s. 8
10 19. Application of common law and equity
11 (1) This Act does not affect the operation of a principle or rule of
12 common law or equity in relation to evidence in a proceeding to
13 which this Act applies, except so far as this Act provides
14 otherwise expressly or by necessary implication.
15 (2) Without limiting subsection (1), this Act does not affect the
16 operation of a principle or rule of common law or equity so far
17 as it relates to any of the following --
18 (a) admission or use of evidence of reasons for a decision of
19 a member of a jury, or of the deliberations of a member
20 of a jury in relation to the decision, in a proceeding by
21 way of appeal from a judgment, decree, order or
22 sentence of a court;
23 (b) bail;
24 (c) any requirement for admission of evidence in support of
25 an alibi.
26 Compare:
27 Evidence Act 1995 (New South Wales) s. 9
28 Evidence Act 1995 (Commonwealth) s. 9
page 22
Evidence Bill 2024
Preliminary Part 1
Application of Act Division 3
s. 20
1 20. Parliamentary privilege preserved
2 (1) This Act does not affect the law relating to the privileges of any
3 Australian Parliament or any House of any Australian
4 Parliament.
5 (2) In particular, section 25(3) does not affect, and is in addition to,
6 the law relating to those privileges.
7 Compare:
8 Evidence Act 1995 (Commonwealth) s. 10
9 21. General powers of court
10 (1) The power of a court to control the conduct of a proceeding is
11 not affected by this Act, except so far as this Act provides
12 otherwise expressly or by necessary implication.
13 (2) In particular, the powers of a court with respect of abuse of
14 process in a proceeding are not affected.
15 Compare:
16 Evidence Act 1995 (Commonwealth) s. 11
page 23
Evidence Bill 2024
Part 2 Adducing evidence
Division 1 Witnesses
s. 22
1 Part 2 -- Adducing evidence
2 Division 1 -- Witnesses
3 Subdivision 1 -- Competence and compellability of witnesses
4 22. Competence and compellability
5 Except as otherwise provided by this Act --
6 (a) every person is competent to give evidence; and
7 (b) a person who is competent to give evidence about a fact
8 is compellable to give that evidence.
9 Compare:
10 Evidence Act 1995 (Commonwealth) s. 12
11 23. Competence: lack of capacity
12 (1) A person is not competent to give evidence about a fact if --
13 (a) for any reason (including a disability), the person does
14 not have capacity --
15 (i) to understand a question about the fact; or
16 (ii) to give an answer that can be understood to a
17 question about the fact;
18 and
19 (b) that incapacity cannot be overcome.
20 (2) A person who, because of subsection (1), is not competent to
21 give evidence about a fact may be competent to give evidence
22 about other facts.
23 (3) A person who is competent to give evidence about a fact is not
24 competent to give sworn evidence about the fact if the person
25 does not have the capacity to understand that, in giving
26 evidence, the person is under an obligation to give truthful
27 evidence.
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Evidence Bill 2024
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Witnesses Division 1
s. 24
1 (4) A person who is not competent to give sworn evidence about a
2 fact may be competent to give unsworn evidence about the fact.
3 (5) A person who, because of subsection (3), is not competent to
4 give sworn evidence is competent to give unsworn evidence if
5 the court has told the person --
6 (a) that it is important to tell the truth; and
7 (b) that the person may be asked questions that the person
8 does not know, or cannot remember, the answer to, and
9 that the person should tell the court if this occurs; and
10 (c) that the person may be asked questions that suggest
11 certain statements are true or untrue and that the person
12 should agree with the statements that the person believes
13 are true and should feel no pressure to agree with
14 statements that the person believes are untrue.
15 (6) It is presumed, unless the contrary is proved, that a person is not
16 incompetent because of this section.
17 (7) Evidence (either sworn or unsworn) that has been given by a
18 witness does not become inadmissible merely because, before
19 the witness finishes giving evidence, the witness dies or ceases
20 to be competent to give the evidence.
21 (8) For the purpose of determining a question arising under this
22 section, the court may inform itself as it thinks fit, including by
23 obtaining information from a person who has relevant
24 specialised knowledge based on the person's training, study or
25 experience.
26 Compare:
27 Evidence Act 1995 (Commonwealth) s. 13
28 24. Compellability: reduced capacity
29 A person is not compellable to give evidence on a particular
30 matter if the court is satisfied that --
31 (a) substantial cost or delay would be incurred in ensuring
32 that the person has the capacity to understand a question
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Evidence Bill 2024
Part 2 Adducing evidence
Division 1 Witnesses
s. 25
1 about the matter or to give an answer that can be
2 understood to a question about the matter; and
3 (b) adequate evidence on that matter has been given, or will
4 be able to be given, from 1 or more other persons or
5 sources.
6 Compare:
7 Evidence Act 1995 (Commonwealth) s. 14
8 25. Compellability: foreign sovereign and others
9 (1) In this section --
10 joint sitting means --
11 (a) in relation to the Parliament of the Commonwealth -- a
12 joint sitting of the members of the Senate and of the
13 House of Representatives convened by the
14 Governor-General under the Commonwealth
15 Constitution section 57 or convened under any Act of
16 the Commonwealth; or
17 (b) in relation to a bicameral legislature of a State -- a joint
18 sitting of both Houses of the legislature convened under
19 a law of the State.
20 (2) The following persons are not compellable to give evidence --
21 (a) a foreign sovereign;
22 (b) the Head of State of a foreign country.
23 (3) A member of a House of an Australian Parliament is not
24 compellable to give evidence if the member would, if compelled
25 to give evidence, be prevented from attending --
26 (a) a sitting of that House or a joint sitting of that
27 Parliament; or
28 (b) a meeting of a committee of that House or that
29 Parliament, being a committee of which the person is a
30 member.
31 Compare:
32 Evidence Act 1995 (Commonwealth) s. 15
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Evidence Bill 2024
Adducing evidence Part 2
Witnesses Division 1
s. 26
1 26. Competence and compellability: judges and jurors
2 (1) A person who is a judge or juror in a proceeding is not
3 competent to give evidence in that proceeding.
4 (2) However, a juror is competent to give evidence in the
5 proceeding about matters affecting the conduct of the
6 proceeding.
7 (3) A person who is or was a judge in an Australian or overseas
8 proceeding is not compellable to give evidence about that
9 proceeding unless the court gives leave.
10 Compare:
11 Evidence Act 1995 (Commonwealth) s. 16
12 27. Competence and compellability: accused and co-accused in
13 criminal proceeding
14 (1) An accused is not competent to give evidence as a witness for
15 the prosecution in a criminal proceeding.
16 (2) A co-accused is not compellable to give evidence for or against
17 an accused in a criminal proceeding, unless the co-accused is
18 being tried separately from the accused.
19 (3) If a witness is a co-accused who is being tried jointly with the
20 accused in a criminal proceeding, the court must satisfy itself (if
21 there is a jury, in the jury's absence) that the witness is aware of
22 the effect of subsection (2).
23 Compare:
24 Evidence Act 1995 (Commonwealth) s. 17
25 28. Compellability: spouses and others in criminal proceeding
26 (1) In a criminal proceeding, a person who is the spouse, former
27 spouse, de facto partner, former de facto partner, parent or
28 offspring of an accused may object to being required --
29 (a) to give evidence as a witness for the prosecution; or
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Evidence Bill 2024
Part 2 Adducing evidence
Division 1 Witnesses
s. 28
1 (b) to give evidence of a communication between the person
2 and the accused as a witness for the prosecution.
3 (2) The objection must be made before the person gives the
4 evidence or as soon as practicable after the person becomes
5 aware of the right to object, whichever is the later.
6 (3) If it appears to the court that a person may have a right to make
7 an objection under this section, the court must satisfy itself that
8 the person is aware of the effect of this section as it may apply
9 to the person.
10 (4) If there is a jury, the court must hear and determine any
11 objection under this section in the absence of the jury.
12 (5) A person who makes an objection under this section to giving
13 evidence or giving evidence of a communication must not be
14 required to give the evidence if the court finds that --
15 (a) there is a likelihood that harm would or might be caused
16 (whether directly or indirectly) to the person, or to the
17 relationship between the person and the accused, if the
18 person gives the evidence; and
19 (b) the nature and extent of that harm outweighs the
20 desirability of having the evidence given.
21 (6) Without limiting the matters that may be taken into account by
22 the court for the purposes of subsection (5), it must take into
23 account the following --
24 (a) the nature and gravity of the offence for which the
25 accused is being prosecuted;
26 (b) the substance and importance of any evidence that the
27 person might give and the weight that is likely to be
28 attached to it;
29 (c) whether any other evidence concerning the matters to
30 which the evidence of the person would relate is
31 reasonably available to the prosecutor;
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Evidence Bill 2024
Adducing evidence Part 2
Witnesses Division 1
s. 29
1 (d) the nature of the relationship between the accused and
2 the person;
3 (e) whether, in giving the evidence, the person would have
4 to disclose a matter that was received by the person in
5 confidence from the accused.
6 (7) If an objection under this section has been determined, the
7 prosecutor must not comment on --
8 (a) the objection; or
9 (b) the decision of the court in relation to the objection; or
10 (c) the failure of the person to give evidence.
11 Compare:
12 Evidence Act 1995 (Commonwealth) s. 18
13 29. Compellability: witnesses in public revenue cases
14 (1) This section applies to the following proceedings --
15 (a) a proceeding for a contravention of a provision of the
16 Duties Act 2008;
17 (b) a proceeding for a contravention of a provision of any
18 Act relating to the public revenue;
19 (c) any proceeding brought by or on behalf of, or against,
20 the Crown under a provision of an Act referred to in
21 paragraph (a) or (b).
22 (2) A court may require any person to give evidence as a witness in
23 a proceeding to which this section applies if the court is satisfied
24 that it is in the public interest that the person gives that
25 evidence.
26 (3) Subsection (2) extends to an accused in a criminal proceeding to
27 which this section applies, who is taken to be competent to give
28 evidence for the prosecution in the proceeding.
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Evidence Bill 2024
Part 2 Adducing evidence
Division 1 Witnesses
s. 30
1 (4) A person who is required by a court to give evidence under this
2 section is compellable to give that evidence (despite any other
3 provision of this Subdivision).
4 (5) This section does not apply to a proceeding before the
5 Magistrates Court or the Children's Court when constituted
6 solely by 1 or more justices of the peace.
7 Note for this section:
8 Section 191 makes provision for the issue of an immunity certificate to
9 a person who is required to give evidence under this section that
10 incriminates the person.
11 Compare:
12 Evidence Act 1906 s. 12
13 30. Comment on decision not to give evidence in criminal
14 proceeding
15 (1) The judge or any party (other than the prosecutor) may
16 comment on a decision of the accused to not give evidence in a
17 criminal proceeding for an indictable offence.
18 (2) However, the comment must not suggest that the accused did
19 not give evidence because the accused had, or believed that they
20 had, committed the offence concerned.
21 (3) The judge or any party (other than the prosecutor) may
22 comment on a decision to not give evidence in a criminal
23 proceeding for an indictable offence by a person who is --
24 (a) the spouse, former spouse, de facto partner or former de
25 facto partner of the accused; or
26 (b) a parent or the offspring of the accused.
27 (4) However, a comment of a kind referred to in subsection (3)
28 must not suggest that the spouse, former spouse, de facto
29 partner, former de facto partner, parent or offspring decided not
30 to give evidence because --
31 (a) the accused had committed the offence concerned; or
page 30
Evidence Bill 2024
Adducing evidence Part 2
Witnesses Division 1
s. 31
1 (b) the spouse, former spouse, de facto partner, former de
2 facto partner, parent or offspring believed that the
3 accused had committed the offence concerned.
4 (5) If 2 or more persons are being tried together for an indictable
5 offence and comment is made in the proceeding by any of those
6 persons on a decision of any of those persons, or of the spouse,
7 former spouse, de facto partner, former de facto partner, parent
8 or offspring of any of those persons, to not give evidence, the
9 judge may comment on that comment, in addition to
10 commenting on the decision to not give evidence.
11 Compare:
12 Evidence Act 1995 (Commonwealth) s. 20
13 Subdivision 2 -- Oaths and affirmations
14 31. Sworn evidence of witnesses to be on oath or affirmation
15 (1) A witness in a proceeding must either take an oath or make an
16 affirmation before giving evidence.
17 (2) Subsection (1) does not apply to a person who gives unsworn
18 evidence because the person is not competent to give sworn
19 evidence.
20 (3) A person who is called merely to produce a document or thing
21 to the court need not take an oath or make an affirmation before
22 doing so.
23 (4) The witness must take the oath or make the affirmation in the
24 following form or in a similar form --
25 I [insert the opening words of an oath or affirmation in
26 accordance with the Oaths, Affidavits and Statutory
27 Declarations Act 2005 section 4 or 5] that the evidence I will
28 give in this case will be the truth, the whole truth and nothing
29 but the truth.
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Evidence Bill 2024
Part 2 Adducing evidence
Division 1 Witnesses
s. 32
1 Compare:
2 Evidence Act 1906 s. 97
3 Evidence Act 1995 (Commonwealth) s. 21 and Schedule
4 32. Interpreters to act on oath or affirmation
5 (1) A person must either take an oath or make an affirmation before
6 acting as an interpreter in a proceeding.
7 (2) The person must take the oath, or make the affirmation, in the
8 following form or in a similar form --
9 I [insert the opening words of an oath or affirmation in
10 accordance with the Oaths, Affidavits and Statutory
11 Declarations Act 2005 section 4 or 5] that I will well and
12 truly translate any evidence that I am asked to translate in this
13 case.
14 Compare:
15 Evidence Act 1906 s. 102
16 Evidence Act 1995 (Commonwealth) s. 22 and Schedule
17 33. Choice of oath or affirmation
18 (1) The court must inform a person who is required to take an oath
19 or affirmation under this Act that the person may choose
20 between taking an oath or making an affirmation.
21 (2) The court may direct the person to make an affirmation if the
22 person refuses to choose whether to take an oath or make an
23 affirmation.
24 Compare:
25 Evidence Act 1995 (Commonwealth) s. 23
26 34. Application of Oaths, Affidavits and Statutory Declarations
27 Act 2005
28 (1) This Act does not affect the operation of the Oaths, Affidavits
29 and Statutory Declarations Act 2005 and, in particular, Part 2 of
30 that Act.
page 32
Evidence Bill 2024
Adducing evidence Part 2
Witnesses Division 1
s. 35
1 Example for this subsection:
2 The Oaths, Affidavits and Statutory Declarations Act 2005 section 5(2)
3 provides for circumstances in which a person may be required to make
4 an affirmation instead of taking an oath.
5 (2) The Oaths, Affidavits and Statutory Declarations Act 2005
6 section 6 applies to any person, other than a witness who is
7 required to take an oath or make an affirmation under this Act,
8 in the same way as it applies to a witness.
9 Compare:
10 Evidence Act 1906 s. 105
11 Subdivision 3 -- General rules about giving evidence
12 35. Court's control over questioning of witnesses
13 A court may make any orders it considers just in relation to the
14 following --
15 (a) the way in which witnesses are to be questioned;
16 (b) the production and use of documents and things in
17 connection with the questioning of witnesses;
18 (c) the order in which parties may question a witness;
19 (d) the presence and behaviour of any person in connection
20 with the questioning of witnesses.
21 Compare:
22 Evidence Act 1995 (Commonwealth) s. 26
23 36. Parties may question witnesses
24 A party may question any witness, except as provided by this
25 Act.
26 Compare:
27 Evidence Act 1995 (Commonwealth) s. 27
page 33
Evidence Bill 2024
Part 2 Adducing evidence
Division 1 Witnesses
s. 37
1 37. Order of examination in chief, cross-examination and
2 re-examination
3 Unless the court otherwise directs --
4 (a) cross-examination of a witness must not take place
5 before the examination in chief of the witness; and
6 (b) re-examination of a witness must not take place before
7 all other parties who wish to do so have cross-examined
8 the witness.
9 Compare:
10 Evidence Act 1995 (Commonwealth) s. 28
11 38. Manner and form of questioning witnesses and their
12 responses
13 (1) A party may question a witness in any way the party thinks fit,
14 except as provided by this Part or as directed by the court.
15 (2) A court may, on its own initiative or on the application of the
16 party who called the witness, direct that the witness give
17 evidence wholly or partly in narrative form.
18 (3) A direction under subsection (2) may include directions about
19 the way in which evidence must be given in that form.
20 Compare:
21 Evidence Act 1995 (Commonwealth) s. 29
22 39. Interpreters
23 A witness may give evidence about a fact through an interpreter
24 unless the witness can understand and speak the English
25 language sufficiently to enable the witness to understand, and to
26 give an adequate reply to, questions that may be put about the
27 fact.
28 Compare:
29 Evidence Act 1995 (Commonwealth) s. 30
page 34
Evidence Bill 2024
Adducing evidence Part 2
Witnesses Division 1
s. 40
1 40. Witnesses who cannot hear adequately or speak adequately
2 (1) A witness who cannot hear adequately may be questioned in
3 any appropriate way.
4 (2) A witness who cannot speak adequately may give evidence by
5 any appropriate means.
6 (3) The court may give directions concerning either or both of the
7 following --
8 (a) the way in which a witness may be questioned under
9 subsection (1);
10 (b) the means by which a witness may give evidence under
11 subsection (2).
12 (4) This section does not affect the right of a witness to whom this
13 section applies to give evidence about a fact through an
14 interpreter under section 39.
15 Compare:
16 Evidence Act 1995 (Commonwealth) s. 31
17 41. Attempts to revive memory in court
18 (1) A witness must not, in the course of giving evidence, use a
19 document to try to revive the witness's memory about a fact or
20 opinion unless the court gives leave.
21 (2) Without limiting the matters that the court may take into
22 account in deciding whether to give leave, it must take into
23 account --
24 (a) whether the witness will be able to recall the fact or
25 opinion adequately without using the document; and
26 (b) whether so much of the document as the witness
27 proposes to use is, or is a copy of, a document that --
28 (i) was written or made by the witness when the
29 events recorded in it were fresh in the witness's
30 memory; or
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Evidence Bill 2024
Part 2 Adducing evidence
Division 1 Witnesses
s. 42
1 (ii) was, at that time, found by the witness to be
2 accurate.
3 (3) If a witness has, while giving evidence, used a document to try
4 to revive the witness's memory about a fact or opinion, the
5 witness may, with the leave of the court, read aloud, as part of
6 the witness's evidence, the part of the document that relates to
7 that fact or opinion.
8 (4) The court must, on the request of a party, give any directions the
9 court thinks fit to ensure that the part of the document that
10 relates to the proceeding is produced to that party.
11 Compare:
12 Evidence Act 1995 (Commonwealth) s. 32
13 42. Evidence given by police officers
14 (1) Despite section 41, in any criminal proceeding a police officer
15 may give evidence in chief for the prosecution by reading or
16 being led through a written statement previously made by the
17 police officer.
18 (2) The evidence cannot be given unless --
19 (a) the statement was made by the police officer --
20 (i) at the time of or soon after the occurrence of the
21 events to which it refers; or
22 (ii) wholly or substantially on the basis of notes that
23 were made by the police officer, or found by the
24 police officer to be accurate, at the time of or
25 soon after the occurrence of the events;
26 and
27 (b) the police officer signed the statement when it was
28 made; and
29 (c) a copy of the statement was given to the person charged
30 or to the person's legal counsel a reasonable time before
31 the hearing of the evidence for the prosecution.
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Evidence Bill 2024
Adducing evidence Part 2
Witnesses Division 1
s. 43
1 (3) This section extends to the giving of evidence in chief by a
2 person who was formerly a police officer if the person was a
3 police officer when the statement was made.
4 Compare:
5 Evidence Act 1995 (Commonwealth) s. 33
6 43. Attempts to revive memory out of court
7 (1) A court may, on the request of a party, give such directions as
8 are appropriate to ensure that specified documents and things
9 used by a witness otherwise than while giving evidence to try to
10 revive the witness's memory are produced to the party for the
11 purposes of the proceeding.
12 (2) The court may refuse to admit the evidence given by the witness
13 so far as it concerns a fact as to which the witness tried to revive
14 the witness's memory if, without reasonable excuse, the
15 directions have not been complied with.
16 Compare:
17 Evidence Act 1995 (Commonwealth) s. 34
18 44. Effect of calling for production of documents
19 (1) A party cannot be required to tender a document only because
20 the party, whether under this Act or otherwise --
21 (a) called for the document to be produced to the party; or
22 (b) inspected the document when it was produced.
23 (2) The party who produces a document called for is not entitled to
24 tender it only because the party to whom it was produced, or
25 who inspected it, fails to tender it.
26 Compare:
27 Evidence Act 1995 (Commonwealth) s. 35
page 37
Evidence Bill 2024
Part 2 Adducing evidence
Division 1 Witnesses
s. 45
1 45. Person may be examined without subpoena or other process
2 (1) A court may order a person to give evidence in a proceeding
3 and to produce documents or things even if a subpoena or other
4 process requiring the person to attend for that purpose has not
5 been duly served on the person if the person --
6 (a) is present at the hearing of the proceeding; and
7 (b) is compellable to give evidence in the proceeding.
8 (2) A court may order a person who is giving evidence in a
9 proceeding to produce documents or things even if a subpoena
10 or other process requiring the person to produce the document
11 or things has not been duly served on the person.
12 (3) A person ordered to give evidence or to produce documents or
13 things is subject to the same penalties and liabilities as if the
14 person had been duly served with a subpoena or other process.
15 (4) A party who inspects a document or thing produced to the court
16 because of subsection (1) or (2) need not use the document or
17 thing in evidence.
18 (5) A court that requires a person to give evidence or produce a
19 document by order under subsection (1) or (2) must ensure the
20 person is given any information about the person's rights with
21 respect to the order that the person would have been given if the
22 requirement had been made by subpoena or other process.
23 (6) A person may object to a requirement to give evidence or
24 produce a document under subsection (1) or (2) on the same
25 grounds as the person could have objected if the requirement
26 had been made by subpoena or other process.
27 Compare:
28 Evidence Act 1906 s. 15
29 Evidence Act 1995 (Commonwealth) s. 36
page 38
Evidence Bill 2024
Adducing evidence Part 2
Witnesses Division 1
s. 46
1 Subdivision 4 -- Examination in chief and re-examination
2 46. Leading questions not to be asked
3 (1) A leading question must not be put to a witness in examination
4 in chief or in re-examination unless --
5 (a) the court gives leave; or
6 (b) the question relates to a matter introductory to the
7 witness's evidence; or
8 (c) no objection is made to the question and (leaving aside
9 the party conducting the examination in chief or
10 re-examination) each other party to the proceeding is
11 represented by legal counsel or the prosecutor; or
12 (d) the question relates to a matter that is not in dispute; or
13 (e) if the witness has specialised knowledge based on the
14 witness's training, study or experience -- the question is
15 asked for the purpose of obtaining the witness's opinion
16 about a hypothetical statement of facts, being facts in
17 respect of which evidence has been, or is intended to be,
18 given.
19 (2) Unless the court otherwise directs, subsection (1) does not apply
20 in a civil proceeding to a question that relates to an
21 investigation, inspection or report that the witness made in the
22 course of carrying out public or official duties.
23 (3) Subsection (1) does not prevent a court from exercising power
24 under rules of court to allow a written statement or report to be
25 tendered or treated as evidence in chief of its maker.
26 Compare:
27 Evidence Act 1995 (Commonwealth) s. 37
page 39
Evidence Bill 2024
Part 2 Adducing evidence
Division 1 Witnesses
s. 47
1 47. Unfavourable witnesses
2 (1) A party who called a witness may, with the leave of the court,
3 question the witness, as though the party were cross-examining
4 the witness, about --
5 (a) evidence given by the witness that is unfavourable to the
6 party; or
7 (b) a matter of which the witness may reasonably be
8 supposed to have knowledge and about which it appears
9 to the court the witness is not, in examination in chief,
10 making a genuine attempt to give evidence; or
11 (c) whether the witness has, at any time, made a prior
12 inconsistent statement.
13 (2) Questioning a witness under this section is taken to be
14 cross-examination for the purposes of this Act (other than for
15 the purposes of re-examination of the witness).
16 (3) The party questioning the witness under this section may, with
17 the leave of the court, question the witness about matters
18 relevant only to the witness's credibility.
19 (4) Questioning under this section must take place before the other
20 parties cross-examine the witness unless the court otherwise
21 directs.
22 (5) If the court so directs, the order in which the parties question the
23 witness must be as the court directs.
24 (6) Without limiting the matters that the court may take into
25 account in determining whether to give leave or a direction
26 under this section, it must take into account --
27 (a) whether the party gave notice at the earliest opportunity
28 of the party's intention to seek leave; and
29 (b) the matters on which, and the extent to which, the
30 witness has been, or is likely to be, questioned by
31 another party.
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Evidence Bill 2024
Adducing evidence Part 2
Witnesses Division 1
s. 48
1 (7) A party is subject to the same liability to be cross-examined
2 under this section as any other witness if --
3 (a) a proceeding is being conducted in the name of the party
4 by or on behalf of an insurer or other person; and
5 (b) the party is a witness in the proceeding.
6 Compare:
7 Evidence Act 1995 (Commonwealth) s. 38
8 48. Limits on re-examination
9 (1) On re-examination --
10 (a) a witness may be questioned about matters arising out of
11 evidence given by the witness in cross-examination; and
12 (b) other questions must not be put to the witness unless the
13 court gives leave.
14 (2) This section does not limit any questioning of a witness after a
15 cross-examination of a kind referred to in section 47.
16 Compare:
17 Evidence Act 1995 (Commonwealth) s. 39
18 Subdivision 5 -- Cross-examination
19 49. Witness called in error not to be cross-examined
20 A party must not cross-examine a witness who has been called
21 in error by another party and has not been questioned by that
22 other party about a matter relevant to a question to be
23 determined in the proceeding.
24 Compare:
25 Evidence Act 1995 (Commonwealth) s. 40
26 50. Improper questions
27 (1) A court must disallow a question (a disallowable question) put
28 to a witness in cross-examination, or inform the witness that it
page 41
Evidence Bill 2024
Part 2 Adducing evidence
Division 1 Witnesses
s. 50
1 need not be answered, if the court is of the opinion that the
2 question --
3 (a) is misleading or confusing; or
4 (b) is unduly annoying, harassing, intimidating, offensive,
5 oppressive, humiliating or repetitive; or
6 (c) is put to the witness in a manner or tone that is belittling,
7 insulting or otherwise inappropriate; or
8 (d) has no basis other than a stereotype (for example, a
9 stereotype based on sex, gender identity, sexual
10 orientation, race, culture, ethnicity, religious or political
11 conviction, age or disability).
12 (2) Without limiting the matters that the court may take into
13 account for the purposes of subsection (1), it must take into
14 account --
15 (a) any relevant condition or characteristic of the witness of
16 which the court is, or is made, aware, including age,
17 education, ethnic and cultural background, gender,
18 language background and skills, level of maturity and
19 understanding and personality; and
20 (b) any disability of which the court is, or is made, aware
21 and which the witness has or appears to have; and
22 (c) the context in which the question is put, including --
23 (i) the nature of the proceeding; and
24 (ii) in a criminal proceeding -- the nature of the
25 offence to which the proceeding relates; and
26 (iii) the relationship (if any) between the witness and
27 any other party to the proceeding.
28 (3) A question is not a disallowable question merely because --
29 (a) the question challenges the truthfulness of the witness or
30 the consistency or accuracy of any statement made by
31 the witness; or
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Evidence Bill 2024
Adducing evidence Part 2
Witnesses Division 1
s. 51
1 (b) the question requires the witness to discuss a subject that
2 could be considered distasteful to, or private by, the
3 witness.
4 (4) A party may object to a question put to a witness on the ground
5 that it is a disallowable question.
6 (5) However, the duty imposed on the court by this section applies
7 whether or not an objection is made to a particular question.
8 (6) A failure by the court to disallow a question under this section,
9 or to inform the witness that it need not be answered, does not
10 affect the admissibility in evidence of any answer given by the
11 witness in response to the question.
12 Compare:
13 Evidence Act 1906 s. 26
14 Evidence Act 1995 (Commonwealth) s. 41
15 51. Leading questions may be asked
16 (1) A party may put a leading question to a witness in
17 cross-examination unless the court disallows the question or
18 directs the witness not to answer it under subsection (2) or (3).
19 (2) The court must disallow a leading question, or direct the witness
20 not to answer it, if the court is satisfied that the facts concerned
21 would be better ascertained if leading questions were not used.
22 (3) The court may disallow a leading question or direct the witness
23 not to answer it if subsection (2) does not apply.
24 (4) Without limiting the matters that the court may take into
25 account in deciding whether to disallow a question or direct the
26 witness not to answer it under subsection (3), the court must
27 take into account the extent to which --
28 (a) evidence that has been given by the witness in
29 examination in chief is unfavourable to the party who
30 called the witness; and
page 43
Evidence Bill 2024
Part 2 Adducing evidence
Division 1 Witnesses
s. 52
1 (b) the witness has an interest consistent with an interest of
2 the cross-examiner; and
3 (c) the witness is sympathetic to the party conducting the
4 cross-examination, either generally or about a particular
5 matter; and
6 (d) the age or any disability of the witness may affect the
7 witness's answers.
8 (5) This section does not limit the court's power to control leading
9 questions.
10 Compare:
11 Evidence Act 1995 (Commonwealth) s. 42
12 52. Prior inconsistent statements of witnesses
13 (1) A witness may be cross-examined about a prior inconsistent
14 statement alleged to have been made by the witness whether or
15 not --
16 (a) complete particulars of the statement have been given to
17 the witness; or
18 (b) a document containing a record of the statement has
19 been shown to the witness.
20 (2) If, in cross-examination, a witness does not admit that the
21 witness has made a prior inconsistent statement, the
22 cross-examiner must not adduce evidence of the statement
23 otherwise than from the witness unless, in the
24 cross-examination, the cross-examiner --
25 (a) informed the witness of enough of the circumstances of
26 the making of the statement to enable the witness to
27 identify the statement; and
28 (b) drew the witness's attention to so much of the statement
29 as is inconsistent with the witness's evidence.
page 44
Evidence Bill 2024
Adducing evidence Part 2
Witnesses Division 1
s. 53
1 (3) For the purpose of adducing evidence of the statement, a party
2 may reopen the party's case.
3 Compare:
4 Evidence Act 1906 s. 21
5 Evidence Act 1995 (Commonwealth) s. 43
6 53. Previous representations of other persons
7 (1) Except as provided by this section, a cross-examiner must not
8 question a witness about a previous representation alleged to
9 have been made by a person other than the witness.
10 (2) A cross-examiner may question a witness about the
11 representation and its contents if --
12 (a) evidence of the representation has been admitted; or
13 (b) the court is satisfied that it will be admitted; or
14 (c) the representation is contained in a document and the
15 document was used, during examination in chief, to try
16 to revive the witness's memory.
17 (3) If subsection (2) does not apply and the representation is
18 contained in a document, the document may be used to question
19 a witness only as follows --
20 (a) the document must be produced to the witness;
21 (b) if the document is an audio recording, or any other kind
22 of document from which sounds are reproduced -- the
23 witness must be provided with the means (for example,
24 headphones) to listen to the contents of the document
25 without other persons present at the cross-examination
26 hearing those contents;
27 (c) the witness must be asked whether, having examined (or
28 heard) the contents of the document, the witness stands
29 by the evidence that the witness has given;
30 (d) neither the cross-examiner nor the witness is permitted
31 to identify the document or disclose any of its contents.
page 45
Evidence Bill 2024
Part 2 Adducing evidence
Division 1 Witnesses
s. 54
1 (4) The document that is used to question the witness may be
2 marked for identification.
3 Compare:
4 Evidence Act 1995 (Commonwealth) s. 44
5 54. Production of documents
6 (1) This section applies if a party is cross-examining or has
7 cross-examined a witness about --
8 (a) a prior inconsistent statement alleged to have been made
9 by the witness that is recorded in a document; or
10 (b) a previous representation alleged to have been made by
11 another person that is recorded in a document.
12 (2) If the court orders or if another party requires, the
13 cross-examining party must produce to the court or to that other
14 party --
15 (a) the document; or
16 (b) any evidence of the contents of the document that is
17 available to the party.
18 (3) The court may --
19 (a) examine a document or evidence that has been produced
20 under subsection (2); and
21 (b) give directions as to its use, and
22 (c) admit it even if it has not been tendered by a party.
23 (4) Subsection (3)(c) does not permit the court to admit a document
24 or evidence that is not admissible because of Part 3, 4 or 5.
25 (5) The mere production of a document to a witness who is being
26 cross-examined does not give rise to a requirement that the
27 cross-examiner tender the document.
28 Compare:
29 Evidence Act 1995 (Commonwealth) s. 45
page 46
Evidence Bill 2024
Adducing evidence Part 2
Witnesses Division 1
s. 55
1 55. Leave to recall witnesses
2 (1) A reference in this section to a matter raised by evidence
3 adduced by another party includes a reference to an inference
4 drawn from, or that the party intends to draw from, that
5 evidence.
6 (2) The court may give leave to a party to recall a witness to give
7 evidence about a matter raised by evidence adduced by another
8 party, being a matter on which the witness was not
9 cross-examined, if the evidence concerned has been admitted
10 and --
11 (a) it contradicts evidence about the matter given by the
12 witness in examination in chief; or
13 (b) the witness could have given evidence about the matter
14 in examination in chief.
15 Compare:
16 Evidence Act 1995 (Commonwealth) s. 46
17 56. Cross-examination of witness by unrepresented party
18 (1) This section applies --
19 (a) in a criminal proceeding -- if an accused who is not
20 represented by legal counsel wishes to cross-examine a
21 witness; or
22 (b) in a civil proceeding in which it is alleged that a witness
23 is the victim of sexual abuse or sexual harassment -- if
24 a party who is not represented by legal counsel wishes to
25 cross-examine the witness.
26 (2) The court may, by order --
27 (a) direct that the witness's evidence on cross-examination
28 be given using a video link separation procedure that
29 separates the witness from the cross-examiner; or
30 (b) if it is not possible to make an order under paragraph (a),
31 direct that a screening procedure be used while the
page 47
Evidence Bill 2024
Part 2 Adducing evidence
Division 1 Witnesses
s. 56
1 witness gives evidence on cross-examination so the
2 witness cannot see the cross-examiner.
3 (3) In addition to, or instead of, making an order under
4 subsection (2)(a) or (b), the court may make an order that --
5 (a) forbids the unrepresented party from putting questions
6 directly to the witness; and
7 (b) requires the unrepresented party to instead put the
8 questions to the judge or another person approved by the
9 court.
10 (4) The judge or approved person must repeat each question
11 accurately to the witness (other than a question that is
12 disallowed).
13 (5) The court must have regard to the following matters in deciding
14 whether to make an order under this section --
15 (a) the nature of the charge or claim to which the
16 proceeding relates;
17 (b) the nature of the relationship (if any) between the
18 parties;
19 (c) the wishes of the witness;
20 (d) the availability of any necessary facilities or equipment.
21 (6) An order under this section --
22 (a) may include any directions the court thinks fit relating to
23 the video link separation procedure or screening
24 procedure; and
25 (b) may be varied or revoked at any time.
26 (7) If a court makes an order under this section in a proceeding
27 before a jury, the judge must instruct the jury that --
28 (a) the procedure used for the cross-examination is a routine
29 practice of the court; and
page 48
Evidence Bill 2024
Adducing evidence Part 2
Witnesses Division 1
s. 57
1 (b) they should not draw an inference as to the guilt of an
2 accused or the culpability of a party from the use of the
3 procedure.
4 (8) This section applies despite the Criminal Procedure Act 2004
5 section 88.
6 (9) This section does not affect the operation of Part 7.
7 (10) Sections 280 and 281 apply to the use of a video link separation
8 procedure or screening procedure under this section in the same
9 way as they apply to their use under Part 7 Division 7.
10 Note for this section:
11 Part 7 Division 9 restricts access to and use of recordings of evidence
12 given by witnesses using video link separation procedures or
13 screening procedures.
14 Compare:
15 Evidence Act 1906 s. 25A
16 57. No direct cross-examination of certain witnesses by
17 unrepresented accused
18 (1) In a criminal proceeding, an accused who is not represented by
19 legal counsel is not entitled to directly cross-examine --
20 (a) a child; or
21 (b) if the proceeding is for a sexual offence -- the
22 complainant; or
23 (c) if the proceeding is for a criminal or identified
24 organisation offence --
25 (i) the complainant; or
26 (ii) any witness for the prosecution;
27 or
28 (d) any other witness of a class prescribed by the
29 regulations for the purposes of this section.
page 49
Evidence Bill 2024
Part 2 Adducing evidence
Division 2 Documents
s. 58
1 (2) Instead, the accused must put any questions to the witness by
2 stating the question to the judge or another person approved by
3 the court.
4 (3) The judge or approved person must repeat each question
5 accurately to the witness (other than a question that is
6 disallowed).
7 (4) This section does not apply to the cross-examination of a
8 witness by an accused if --
9 (a) the witness is not a child; and
10 (b) the witness consents to being directly cross-examined by
11 the accused.
12 (5) If the proceeding is before a jury, the judge must instruct the
13 jury that --
14 (a) the procedure used for the cross-examination is a routine
15 practice of the court; and
16 (b) they should not draw an inference as to the accused's
17 guilt from the use of the procedure.
18 (6) This section does not affect the operation of Part 7.
19 Compare:
20 Evidence Act 1906 s. 106G
21 Division 2 -- Documents
22 58. Terms used
23 In this Division --
24 copy, of a document in question, includes a document that is not
25 an exact copy of the document in question but that is identical to
26 the document in question in all relevant respects;
27 document in question means a document as to the contents of
28 which it is sought to adduce evidence.
29 Compare:
30 Evidence Act 1995 (Commonwealth) s. 47
page 50
Evidence Bill 2024
Adducing evidence Part 2
Documents Division 2
s. 59
1 59. Proof of contents of documents
2 (1) A party may adduce evidence of the contents of a document in
3 question by tendering the document in question or by any of the
4 following methods --
5 (a) adducing evidence of an admission made by another
6 party to the proceeding as to the contents of the
7 document in question;
8 (b) tendering a document that --
9 (i) is or purports to be a copy or accurate
10 reproduction of the document in question; and
11 (ii) has been produced, or purports to have been
12 produced, by a device that reproduces the
13 contents of documents or has been made by any
14 other process or in any other way;
15 (c) if the document in question is an article or thing by
16 which words are recorded in a way that is capable of
17 being reproduced as sound, or in which words are
18 recorded in a code (including shorthand writing) --
19 tendering a document that is or purports to be a
20 transcript of the words;
21 (d) if the document in question is an article or thing on or in
22 which information is stored in a way that it cannot be
23 used by the court unless a device is used to retrieve,
24 produce or collate it -- tendering a document that was
25 or purports to have been produced by use of the device;
26 (e) tendering a document that --
27 (i) forms part of the records of or kept by a business
28 (whether or not the business is still in existence);
29 and
30 (ii) is or purports to be a copy of, or an extract from
31 or a summary of, the document in question, or is
32 or purports to be a copy of the extract or
33 summary;
page 51
Evidence Bill 2024
Part 2 Adducing evidence
Division 2 Documents
s. 59
1 (f) if the document in question is a public document --
2 tendering a document that is or purports to be a copy of
3 the document in question and that is or purports to have
4 been printed or published --
5 (i) by the Government Printer or by the government
6 or official printer of the Commonwealth, another
7 State or a Territory; or
8 (ii) by authority of the Government or administration
9 of the State, the Commonwealth, another State, a
10 Territory or a foreign country; or
11 (iii) by authority of an Australian Parliament, a
12 House of an Australian Parliament, a committee
13 of a House of an Australian Parliament or a
14 committee of an Australian Parliament;
15 (g) tendering a document that otherwise accurately
16 reproduces the contents of the document in question.
17 (2) Subsection (1) applies to a document in question whether the
18 document in question is available to the party or not.
19 (3) If the party adduces evidence of the contents of a document
20 under subsection (1)(a), the evidence may only be used --
21 (a) in respect of the party's case against the other party who
22 made the admission concerned; or
23 (b) in respect of the other party's case against the party who
24 adduced the evidence in that way.
25 (4) A party may adduce evidence of the contents of a document in
26 question that is not available to the party, or the existence and
27 contents of which are not in issue in the proceeding, by --
28 (a) tendering a document that is a copy of, or an extract
29 from or summary of, the document in question; or
page 52
Evidence Bill 2024
Adducing evidence Part 2
Documents Division 2
s. 60
1 (b) adducing from a witness evidence of the contents of the
2 document in question.
3 Compare:
4 Evidence Act 1906 s. 73A
5 Evidence Act 1995 (Commonwealth) s. 48
6 60. Documents in foreign countries
7 Section 59(1)(b), (c), (d), (e) or (f) does not apply to a document
8 that is in a foreign country unless --
9 (a) the party who adduces evidence of the contents of the
10 document in question has, not less than 28 days (or any
11 other period prescribed by the regulations or by rules of
12 court for the purposes of this section) before the day on
13 which the evidence is adduced, served on each other
14 party a copy of the document proposed to be tendered;
15 or
16 (b) the court directs that it applies.
17 Compare:
18 Evidence Act 1995 (Commonwealth) s. 49
19 61. Original document rule abolished
20 The principles and rules of common law that relate to the means
21 of proving the contents of documents are abolished.
22 Compare:
23 Evidence Act 1995 (Commonwealth) s. 51
24 62. Copies of dutiable instruments
25 (1) In this section --
26 duties Act means the Stamp Act 1921 or the Duties Act 2008;
27 stamped means stamped or duty endorsed under a duties Act.
28 (2) If a document (the original document) is chargeable with duty
29 or required to be stamped under a duties Act, a copy of the
page 53
Evidence Bill 2024
Part 2 Adducing evidence
Division 3 Other ways of adducing evidence
s. 63
1 original document is not admissible in a civil proceeding unless
2 the court is satisfied that --
3 (a) the copy shows or establishes, or it is otherwise
4 established, that the original document was stamped as
5 required by the duties Act concerned; or
6 (b) the provisions of the duties Act concerned that enable
7 the admission, or use, in a civil proceeding of a
8 document that is not stamped as required by that Act are
9 complied with as if the copy were the original
10 document.
11 (3) This section extends to a civil proceeding before a person acting
12 judicially.
13 Compare:
14 Evidence Act 1906 s. 73U
15 Division 3 -- Other ways of adducing evidence
16 63. Adducing of other evidence not affected
17 This Act (other than this Division) does not affect the operation
18 of any Australian law or rule of practice so far as it permits
19 evidence to be adduced in a way other than by witnesses giving
20 evidence or documents being tendered in evidence.
21 Compare:
22 Evidence Act 1995 (Commonwealth) s. 52
23 64. Demonstrations, experiments and inspections
24 (1) A court may, on application, order that a demonstration,
25 experiment or inspection be held in or outside the courtroom.
26 (2) A court must not make an order unless the court is satisfied
27 that --
28 (a) the parties will be given a reasonable opportunity to be
29 present; and
30 (b) the judge and, if there is a jury, the jury will be present.
page 54
Evidence Bill 2024
Adducing evidence Part 2
Other ways of adducing evidence Division 3
s. 65
1 (3) Without limiting the matters that the court may take into
2 account in deciding whether to make an order, the court must
3 take into account the following --
4 (a) whether the parties will be present;
5 (b) whether the demonstration, experiment or inspection
6 will, in the court's opinion, assist the court in resolving
7 issues of fact or understanding the evidence;
8 (c) the danger that the demonstration, experiment or
9 inspection might --
10 (i) be unfairly prejudicial; or
11 (ii) be misleading or confusing; or
12 (iii) cause or result in undue waste of time;
13 (d) in the case of a demonstration -- the extent to which the
14 demonstration will properly reproduce the conduct or
15 event to be demonstrated;
16 (e) in the case of an inspection -- the extent to which the
17 place or thing to be inspected has materially altered.
18 (4) The court (including, if there is a jury, the jury) must not
19 conduct an experiment in the course of its deliberations.
20 (5) This section does not apply in relation to the inspection of an
21 exhibit by the court or, if there is a jury, by the jury.
22 Compare:
23 Evidence Act 1995 (Commonwealth) s. 53
24 65. Demonstrations, experiments and inspections to be evidence
25 A court (including, if there is a jury, the jury) may draw any
26 reasonable inference from what it sees, hears or otherwise
27 notices during a demonstration, experiment or inspection.
28 Compare:
29 Evidence Act 1995 (Commonwealth) s. 54
page 55
Evidence Bill 2024
Part 2 Adducing evidence
Division 3 Other ways of adducing evidence
s. 66
1 66. Charts, summaries and explanatory documents
2 (1) Evidence may be given in the form of a chart, summary or other
3 explanatory document if it appears to the court that the
4 document would be likely to aid comprehension of other
5 evidence that has been given or is to be given.
6 (2) This section does not affect the operation of section 67.
7 Compare:
8 Evidence Act 1906 s. 27A
9 67. Court may require voluminous or complex evidence to be
10 given in another form
11 (1) If a court is satisfied that any oral or documentary evidence that
12 a party proposes to adduce is so complex or voluminous that it
13 would be difficult to assess or comprehend, the court may direct
14 the party to adduce the evidence wholly or partly in another
15 form, including in the form of a chart, summary or other
16 explanatory document.
17 (2) The court may make a direction under this section on its own
18 initiative or on the application of a party.
19 (3) The direction may include directions about the form in which
20 evidence must be given.
21 (4) The direction must also contain directions to ensure that each
22 other party --
23 (a) is served with --
24 (i) copies of the evidence in the form in which the
25 evidence must be given; and
26 (ii) the name and address of the person who prepared
27 the evidence in that form;
28 and
29 (b) is given a reasonable opportunity to examine or copy the
30 evidence.
page 56
Evidence Bill 2024
Adducing evidence Part 2
Other ways of adducing evidence Division 3
s. 67
1 (5) The opinion rule does not apply to evidence adduced in
2 accordance with a direction under this section.
3 Compare:
4 Evidence Act 1906 s. 27B
5 Evidence Act 1995 (Commonwealth) s. 50
page 57
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 1 Relevance
s. 68
1 Part 3 -- Admissibility of evidence
2 Division 1 -- Relevance
3 68. Relevant evidence
4 (1) The evidence that is relevant in a proceeding is evidence that, if
5 it were accepted, could rationally affect (directly or indirectly)
6 the assessment of the probability of the existence of a fact in
7 issue in the proceeding.
8 (2) In particular, evidence cannot be considered irrelevant only
9 because it relates only to --
10 (a) the credibility of a witness; or
11 (b) the admissibility of other evidence; or
12 (c) a failure to adduce evidence.
13 Compare:
14 Evidence Act 1995 (Commonwealth) s. 55
15 69. Relevant evidence to be admissible
16 (1) Except as otherwise provided by this Act, evidence that is
17 relevant in a proceeding is admissible in the proceeding.
18 (2) Evidence that is not relevant in the proceeding is not admissible.
19 Compare:
20 Evidence Act 1995 (Commonwealth) s. 56
21 70. Provisional relevance
22 (1) If the determination of the question whether evidence adduced
23 by a party is relevant depends on the court making another
24 finding (including a finding that the evidence is what the party
25 claims it to be), the court may find that the evidence is
26 relevant --
27 (a) if it is reasonably open to make that finding; or
page 58
Evidence Bill 2024
Admissibility of evidence Part 3
Hearsay Division 2
s. 71
1 (b) subject to further evidence being admitted at a later
2 stage of the proceeding that will make it reasonably
3 open to make that finding.
4 (2) Without limiting subsection (1), if the relevance of evidence of
5 an act done by a person depends on the court making a finding
6 that the person and 1 or more other persons had, or were acting
7 in furtherance of, a common purpose (whether to effect an
8 unlawful conspiracy or otherwise), the court may use the
9 evidence itself in determining whether the common purpose
10 existed.
11 Compare:
12 Evidence Act 1995 (Commonwealth) s. 57
13 71. Inferences as to relevance
14 (1) If a question arises as to the relevance of a document or thing,
15 the court may examine it and may draw any reasonable
16 inference from it, including an inference as to its authenticity or
17 identity.
18 (2) Subsection (1) does not limit the matters from which inferences
19 may properly be drawn.
20 Compare:
21 Evidence Act 1995 (Commonwealth) s. 58
22 Division 2 -- Hearsay
23 Subdivision 1 -- Hearsay rule
24 72. Hearsay rule: exclusion of hearsay evidence
25 (1) Evidence of a previous representation made by a person is not
26 admissible to prove the existence of a fact that it can reasonably
27 be supposed that the person intended to assert by the
28 representation (an asserted fact).
29 (2) For the purposes of determining under subsection (1) whether it
30 can reasonably be supposed that the person intended to assert a
page 59
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 2 Hearsay
s. 73
1 particular fact by the representation, the court may have regard
2 to the circumstances in which the representation was made.
3 Note for this subsection:
4 This subsection relates to the decision of the Supreme Court of New
5 South Wales in R. v Hannes (2000) 158 FLR 359.
6 (3) Subsection (1) does not apply to evidence of a representation
7 contained in a certificate or other document given or made
8 under regulations made under an Act (other than this Act) to the
9 extent to which the regulations under that Act provide that the
10 certificate or other document has evidentiary effect.
11 Examples for this section:
12 1. D is the accused in a sexual offence trial. W has made a statement to
13 the police that X told W that X had seen D leave a nightclub with the
14 complainant shortly before the sexual offence is alleged to have
15 occurred. Unless an exception to the hearsay rule applies, evidence of
16 what X told W cannot be given at the trial.
17 2. P had told W that the handbrake on W's car did not work. Unless an
18 exception to the hearsay rule applies, evidence of that statement
19 cannot be given by P, W or anyone else to prove that the handbrake
20 was defective.
21 3. W had bought an electronic device and written down its serial number
22 on a document. Unless an exception to the hearsay rule applies, the
23 document is inadmissible to prove that an electronic device later found
24 in D's possession was the electronic device bought by W.
25 Compare:
26 Evidence Act 1995 (Commonwealth) s. 59
27 73. Exception: evidence relevant for non-hearsay purpose
28 (1) The hearsay rule does not apply to evidence of a previous
29 representation that is admitted because it is relevant for a
30 purpose other than proof of an asserted fact.
31 (2) This section applies whether or not the person who made the
32 representation had personal knowledge of the asserted fact (as
33 defined in section 75(2)).
34 Note for this subsection:
35 This subsection relates to the decision of the High Court of Australia in
36 Lee v The Queen (1998) 195 CLR 594.
page 60
Evidence Bill 2024
Admissibility of evidence Part 3
Hearsay Division 2
s. 74
1 (3) However, this section does not apply in a criminal proceeding to
2 evidence of an admission.
3 Compare:
4 Evidence Act 1995 (Commonwealth) s. 60
5 74. Exceptions to hearsay rule dependent on competency
6 (1) This Division does not enable use of a previous representation
7 to prove the existence of an asserted fact if, when the
8 representation was made, the person who made it was not
9 competent to give either sworn or unsworn evidence about the
10 fact.
11 (2) This section does not apply to a contemporaneous
12 representation made by a person about the person's health,
13 feelings, sensations, intention, knowledge or state of mind.
14 (3) For the purposes of this section, it is presumed, unless the
15 contrary is proved, that when the representation was made the
16 person who made it was competent to give evidence about the
17 asserted fact.
18 Compare:
19 Evidence Act 1995 (Commonwealth) s. 61
20 Subdivision 2 -- First-hand hearsay
21 75. Restriction to first-hand hearsay
22 (1) A reference in this Subdivision (other than in subsection (2)) to
23 a previous representation is a reference to a previous
24 representation that was made by a person who had personal
25 knowledge of an asserted fact.
26 (2) A person has personal knowledge of the asserted fact if the
27 person's knowledge of the fact was, or might reasonably be
28 supposed to have been, based on something that the person saw,
29 heard or otherwise perceived, other than a previous
30 representation made by another person about the fact.
page 61
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 2 Hearsay
s. 76
1 (3) For the purposes of section 80, a person has personal
2 knowledge of the asserted fact if it is a fact about the person's
3 health, feelings, sensations, intention, knowledge or state of
4 mind at the time the representation referred to in that section
5 was made.
6 Compare:
7 Evidence Act 1995 (Commonwealth) s. 62
8 76. Exception: civil proceeding if maker not available
9 (1) This section applies to a civil proceeding if a person who made
10 a previous representation is not available to give evidence about
11 an asserted fact.
12 (2) The hearsay rule does not apply to --
13 (a) evidence of the representation that is given by a person
14 who saw, heard or otherwise perceived the
15 representation being made; or
16 (b) a document so far as it contains the representation, or
17 another representation to which it is reasonably
18 necessary to refer in order to understand the
19 representation.
20 Compare:
21 Evidence Act 1995 (Commonwealth) s. 63
22 77. Exception: civil proceeding if maker available
23 (1) This section applies to a civil proceeding if a person who made
24 a previous representation is available to give evidence about an
25 asserted fact.
26 (2) The hearsay rule does not apply to the following if it would
27 cause undue expense or undue delay, or would not be
28 reasonably practicable, to call the person who made the
29 representation to give evidence --
page 62
Evidence Bill 2024
Admissibility of evidence Part 3
Hearsay Division 2
s. 78
1 (a) evidence of the representation that is given by a person
2 who saw, heard or otherwise perceived the
3 representation being made;
4 (b) a document so far as it contains the representation, or
5 another representation to which it is reasonably
6 necessary to refer in order to understand the
7 representation.
8 (3) If the person who made the representation has been or is to be
9 called to give evidence, the hearsay rule does not apply to
10 evidence of the representation that is given by --
11 (a) that person; or
12 (b) a person who saw, heard or otherwise perceived the
13 representation being made.
14 (4) A document containing a representation to which subsection (3)
15 applies must not be tendered before the conclusion of the
16 examination in chief of the person who made the representation
17 unless the court gives leave.
18 Compare:
19 Evidence Act 1995 (Commonwealth) s. 64
20 78. Exception: criminal proceeding if maker not available
21 (1) This section applies to a criminal proceeding if a person who
22 made a previous representation is not available to give evidence
23 about an asserted fact.
24 (2) The hearsay rule does not apply to evidence of a previous
25 representation that is given by a person who saw, heard or
26 otherwise perceived the representation being made if the
27 representation --
28 (a) was made under a duty to make that representation or to
29 make representations of that kind; or
30 (b) was made when or shortly after the asserted fact
31 occurred and in circumstances that make it unlikely that
32 the representation is a fabrication; or
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Evidence Bill 2024
Part 3 Admissibility of evidence
Division 2 Hearsay
s. 78
1 (c) was made in circumstances that make it highly probable
2 that the representation is reliable; or
3 (d) was --
4 (i) against the interests of the person who made it at
5 the time it was made; and
6 (ii) made in circumstances that make it likely that the
7 representation is reliable.
8 (3) The hearsay rule does not apply to evidence of a previous
9 representation made in the course of giving evidence in an
10 Australian or overseas proceeding if, in that proceeding, the
11 accused in the proceeding to which this section is being
12 applied --
13 (a) cross-examined the person who made the representation
14 about it; or
15 (b) had a reasonable opportunity to cross-examine the
16 person who made the representation about it.
17 (4) If there is more than 1 accused in the criminal proceeding,
18 evidence of a previous representation that is admitted into
19 evidence in the criminal proceeding because of subsection (3)
20 cannot be used against an accused who did not cross-examine,
21 and did not have a reasonable opportunity to cross-examine, the
22 person about the representation.
23 (5) For the purposes of subsections (3) and (4), an accused is taken
24 to have had a reasonable opportunity to cross-examine a person
25 if the accused was not present at a time when the
26 cross-examination of a person might have been conducted,
27 but --
28 (a) could reasonably have been present at that time; and
29 (b) if present, could have cross-examined the person.
30 (6) Evidence of the making of a representation to which
31 subsection (3) applies may be adduced by producing a
page 64
Evidence Bill 2024
Admissibility of evidence Part 3
Hearsay Division 2
s. 78
1 transcript, or a recording, of the representation that is
2 authenticated by --
3 (a) the person to whom, or the court or other body to which,
4 the representation was made; or
5 (b) if applicable, the registrar or other proper officer of the
6 court or other body to which the representation was
7 made; or
8 (c) the person or body responsible for producing the
9 transcript or recording.
10 (7) Without limiting subsection (2)(d), a representation is taken for
11 the purposes of that paragraph to be against the interests of the
12 person who made it if it tends --
13 (a) to damage the person's reputation; or
14 (b) to show that the person has committed an offence for
15 which the person has not been convicted; or
16 (c) to show that the person is liable in an action for
17 damages.
18 (8) The hearsay rule does not apply to --
19 (a) evidence of a previous representation adduced by an
20 accused if the evidence is given by a person who saw,
21 heard or otherwise perceived the representation being
22 made; or
23 (b) a document tendered as evidence by an accused so far as
24 it contains a previous representation, or another
25 representation to which it is reasonably necessary to
26 refer in order to understand the representation.
27 (9) If evidence of a previous representation about a matter has been
28 adduced by an accused and has been admitted, the hearsay rule
29 does not apply to evidence of another representation about the
30 matter that --
31 (a) is adduced by another party; and
page 65
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 2 Hearsay
s. 79
1 (b) is given by a person who saw, heard or otherwise
2 perceived the other representation being made.
3 Compare:
4 Evidence Act 1995 (Commonwealth) s. 65
5 79. Exception: criminal proceeding if maker available
6 (1) This section applies to a criminal proceeding if a person who
7 made a previous representation is available to give evidence
8 about an asserted fact.
9 (2) The hearsay rule does not apply to evidence of the
10 representation that is given by the person who made the
11 representation, or by a person who saw, heard or otherwise
12 perceived the representation being made, if --
13 (a) the person who made the representation has been or is to
14 be called to give evidence; and
15 (b) when the representation was made, the occurrence of the
16 asserted fact was fresh in the memory of the person who
17 made the representation.
18 (3) In determining whether the occurrence of the asserted fact was
19 fresh in the memory of a person, the court may take into account
20 all matters that it considers are relevant to the question,
21 including --
22 (a) the nature of the event concerned; and
23 (b) the age and health of the person; and
24 (c) the period of time between the occurrence of the
25 asserted fact and the making of the representation.
26 Note for this subsection:
27 This subsection relates to the decision of the High Court of Australia in
28 Graham v The Queen (1998) 195 CLR 606.
29 (4) If a representation was made for the purpose of indicating the
30 evidence that the person who made it would be able to give in
31 an Australian or overseas proceeding, subsection (2) does not
32 apply to evidence adduced by the prosecutor of the
page 66
Evidence Bill 2024
Admissibility of evidence Part 3
Hearsay Division 2
s. 80
1 representation unless the representation concerns the identity of
2 a person, place or thing.
3 (5) A document containing a representation to which subsection (2)
4 applies must not be tendered before the conclusion of the
5 examination in chief of the person who made the representation
6 unless the court gives leave.
7 Compare:
8 Evidence Act 1995 (Commonwealth) s. 66
9 80. Exception: particular contemporaneous statements about
10 person
11 The hearsay rule does not apply to evidence of a previous
12 representation made by a person if the representation was a
13 contemporaneous representation about the person's health,
14 feelings, sensations, intention, knowledge or state of mind.
15 Compare:
16 Evidence Act 1995 (Commonwealth) s. 66A
17 81. Notice to be given
18 (1) An exception to the hearsay rule that is specified in
19 section 76(2), 77(2) or 78(2), (3) or (8) does not apply to
20 evidence adduced by a party unless that party has given
21 reasonable notice in writing to each other party of the party's
22 intention to adduce the evidence.
23 (2) A notice given under subsection (1) must be given in
24 accordance with any regulations or rules of court made for the
25 purposes of this section.
26 (3) The notice must state --
27 (a) the particular provisions of this Subdivision on which
28 the party intends to rely in arguing that the hearsay rule
29 does not apply to the evidence; and
page 67
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 2 Hearsay
s. 82
1 (b) if section 77(2) is a provision on which the party intends
2 to rely -- the grounds, specified in that provision, on
3 which the party intends to rely.
4 (4) Despite subsection (1), if notice has not been given, the court
5 may, on the application of a party, direct that 1 or more of the
6 exceptions to the hearsay rule referred to in subsection (1)
7 applies despite the party's failure to give notice.
8 (5) The direction may provide that, in relation to specified
9 evidence, the exception or exceptions concerned apply with the
10 modifications the court specifies.
11 (6) Subsection (5) does not limit the court's power to impose
12 conditions on the direction.
13 Compare:
14 Evidence Act 1995 (Commonwealth) s. 67
15 82. Objections to tender of hearsay evidence in civil proceeding
16 if maker available
17 (1) In a civil proceeding, a party may, not later than 21 days after
18 notice under section 81(1) has been given, object to the tender
19 of the evidence, or of a specified part of the evidence, if the
20 notice discloses that it is not intended to call the person who
21 made the previous representation concerned because --
22 (a) it would cause undue expense or undue delay; or
23 (b) it would not be reasonably practicable.
24 (2) The objection must be made by giving to each other party a
25 written notice setting out the grounds on which the objection is
26 made.
27 (3) The court may, on the application of a party, determine the
28 objection at or before the hearing.
page 68
Evidence Bill 2024
Admissibility of evidence Part 3
Hearsay Division 2
s. 83
1 (4) If the objection is unreasonable, the court may order that, in any
2 event, the party objecting must bear the costs (ascertained on a
3 solicitor and client basis) incurred by another party --
4 (a) in relation to the objection; and
5 (b) in calling the person who made the representation to
6 give evidence.
7 Compare:
8 Evidence Act 1995 (Commonwealth) s. 68
9 Subdivision 3 -- Other exceptions to hearsay rule
10 83. Exception: business records
11 (1) This section applies to a document that contains a previous
12 representation made or recorded in the document in the course
13 of, or for the purposes of, a business and that either --
14 (a) is or forms part of the records belonging to or kept by a
15 person, body or organisation in the course of, or for the
16 purposes of, the business; or
17 (b) at any time was or formed part of a record referred to in
18 paragraph (a).
19 (2) The hearsay rule does not apply to the document (so far as it
20 contains the representation) if the representation was made --
21 (a) by a person who had or might reasonably be supposed to
22 have had personal knowledge of the asserted fact; or
23 (b) on the basis of information directly or indirectly
24 supplied by a person who had or might reasonably be
25 supposed to have had personal knowledge of the
26 asserted fact.
27 (3) Subsection (2) does not apply if the representation --
28 (a) was prepared or obtained for the purpose of conducting,
29 or for or in contemplation of or in connection with, an
30 Australian or overseas proceeding; or
page 69
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 2 Hearsay
s. 84
1 (b) was made in connection with an investigation relating or
2 leading to a criminal proceeding.
3 (4) If the occurrence of an event of a particular kind is in question
4 and, in the course of a business, a system has been followed of
5 making and keeping a record of the occurrence of all events of
6 that kind, the hearsay rule does not apply to evidence that tends
7 to prove that there is no record kept, in accordance with that
8 system, of the occurrence of the event.
9 (5) For the purposes of this section, a person is taken to have had
10 personal knowledge of a fact if the person's knowledge of the
11 fact was, or might reasonably be supposed to have been, based
12 on what the person saw, heard or otherwise perceived (other
13 than a previous representation made by a person about the fact).
14 Compare:
15 Evidence Act 1995 (Commonwealth) s. 69
16 84. Exception: content of tags, labels and writing
17 The hearsay rule does not apply to a tag or label attached to, or
18 writing placed on, an object (including a document) if the tag or
19 label or writing may reasonably be supposed to have been
20 attached or placed --
21 (a) in the course of a business; or
22 (b) for the purpose of describing or stating the identity,
23 nature, ownership, destination, origin or weight of the
24 object, or of the contents (if any) of the object.
25 Compare:
26 Evidence Act 1995 (Commonwealth) s. 70
page 70
Evidence Bill 2024
Admissibility of evidence Part 3
Hearsay Division 2
s. 85
1 85. Exception: electronic communication
2 The hearsay rule does not apply to a representation contained in
3 a document recording an electronic communication so far as the
4 representation is a representation as to --
5 (a) the identity of the person from whom or on whose
6 behalf the communication was sent; or
7 (b) the date on which or the time at which the
8 communication was sent; or
9 (c) the destination of the communication or the identity of
10 the person to whom the communication was addressed.
11 Compare:
12 Evidence Act 1995 (Commonwealth) s. 71
13 86. Exception: Aboriginal and Torres Strait Islander traditional
14 laws and customs
15 The hearsay rule does not apply to evidence of a representation
16 about the existence or non-existence, or the content, of the
17 traditional laws and customs of an Aboriginal or Torres Strait
18 Islander group.
19 Compare:
20 Evidence Act 1995 (Commonwealth) s. 72
21 87. Exception: reputation as to relationships and age
22 (1) The hearsay rule does not apply to evidence of reputation
23 concerning --
24 (a) whether a person was, at a particular time or at any time,
25 a married person; or
26 (b) whether 2 people cohabiting at a particular time were
27 married to each other at that time; or
28 (c) a person's age; or
29 (d) family history or a family relationship.
page 71
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 2 Hearsay
s. 88
1 (2) In a criminal proceeding, subsection (1) does not apply to
2 evidence adduced by an accused unless --
3 (a) it tends to contradict evidence of a kind referred to in
4 subsection (1) that has been admitted; or
5 (b) the accused has given reasonable notice in writing to
6 each other party of the accused's intention to adduce the
7 evidence.
8 (3) In a criminal proceeding, subsection (1) does not apply to
9 evidence adduced by the prosecutor unless it tends to contradict
10 evidence of a kind referred to in subsection (1) that has been
11 admitted.
12 Compare:
13 Evidence Act 1995 (Commonwealth) s. 73
14 88. Exception: reputation of public or general rights
15 (1) The hearsay rule does not apply to evidence of reputation
16 concerning the existence, nature or extent of a public or general
17 right.
18 (2) In a criminal proceeding, subsection (1) does not apply to
19 evidence adduced by the prosecutor unless it tends to contradict
20 evidence of a kind referred to in subsection (1) that has been
21 admitted.
22 Compare:
23 Evidence Act 1995 (Commonwealth) s. 74
24 89. Exception: interlocutory proceedings
25 In an interlocutory proceeding, the hearsay rule does not apply
26 to evidence if the party who adduces it also adduces evidence of
27 its source.
28 Compare:
29 Evidence Act 1995 (Commonwealth) s. 75
page 72
Evidence Bill 2024
Admissibility of evidence Part 3
Opinion Division 3
s. 90
1 Division 3 -- Opinion
2 90. Opinion rule
3 (1) Evidence of an opinion is not admissible to prove the existence
4 of a fact about the existence of which the opinion was
5 expressed.
6 (2) Subsection (1) does not apply to evidence of an opinion
7 contained in a certificate or other document given or made
8 under regulations made under an Act (other than this Act) to the
9 extent to which the regulations provide that the certificate or
10 other document has evidentiary effect.
11 Examples for this section:
12 1. P sues D, P's doctor, for the negligent performance of a surgical
13 operation. Unless an exception to the opinion rule applies, P's
14 neighbour, W, who had the same operation, cannot give evidence of
15 W's opinion that D had not performed the operation as well as W's
16 operation.
17 2. P thinks electrical work that D, an electrician, has done for P is
18 unsatisfactory. Unless an exception to the opinion rule applies, P
19 cannot give evidence of P's opinion that D does not have the
20 necessary skills to do electrical work.
21 Compare:
22 Evidence Act 1995 (Commonwealth) s. 76
23 91. Exception: evidence relevant otherwise than as opinion
24 evidence
25 The opinion rule does not apply to evidence of an opinion that is
26 admitted because it is relevant for a purpose other than proof of
27 the existence of a fact about the existence of which the opinion
28 was expressed.
29 Compare:
30 Evidence Act 1995 (Commonwealth) s. 77
page 73
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 3 Opinion
s. 92
1 92. Exception: lay opinions
2 The opinion rule does not apply to evidence of an opinion
3 expressed by a person if --
4 (a) the opinion is based on what the person saw, heard or
5 otherwise perceived about a matter or event; and
6 (b) evidence of the opinion is necessary to obtain an
7 adequate account or understanding of the person's
8 perception of the matter or event.
9 Compare:
10 Evidence Act 1995 (Commonwealth) s. 78
11 93. Exception: Aboriginal and Torres Strait Islander traditional
12 laws and customs
13 The opinion rule does not apply to evidence of an opinion
14 expressed by a member of an Aboriginal or Torres Strait
15 Islander group about the existence or non-existence, or the
16 content, of the traditional laws and customs of the group.
17 Compare:
18 Evidence Act 1995 (Commonwealth) s. 78A
19 94. Exception: opinions based on specialised knowledge
20 (1) If a person has specialised knowledge based on the person's
21 training, study or experience, the opinion rule does not apply to
22 evidence of an opinion of that person that is wholly or
23 substantially based on that knowledge.
24 (2) Without limiting subsection (1) --
25 (a) a reference in that subsection to specialised knowledge
26 includes a reference to specialised knowledge of child
27 development and child behaviour (including specialised
28 knowledge of the impact of sexual abuse on children
29 and their development and behaviour during and
30 following the abuse); and
page 74
Evidence Bill 2024
Admissibility of evidence Part 3
Admissions Division 4
s. 95
1 (b) a reference in that subsection to an opinion of a person
2 includes, if the person has specialised knowledge of the
3 kind referred to in paragraph (a), a reference to an
4 opinion relating to either or both of the following --
5 (i) the development and behaviour of children
6 generally;
7 (ii) the development and behaviour of children who
8 have been victims of sexual abuse.
9 Compare:
10 Evidence Act 1995 (Commonwealth) s. 79
11 95. Ultimate issue and common knowledge rules abolished
12 Evidence of an opinion is not inadmissible only because it is
13 about --
14 (a) a fact in issue or an ultimate issue; or
15 (b) a matter of common knowledge.
16 Compare:
17 Evidence Act 1995 (Commonwealth) s. 80
18 Division 4 -- Admissions
19 96. Hearsay and opinion rules: exception for admissions and
20 related representations
21 (1) The hearsay rule and the opinion rule do not apply to evidence
22 of an admission.
23 (2) The hearsay rule and the opinion rule do not apply to evidence
24 of a previous representation --
25 (a) that was made in relation to an admission at the time the
26 admission was made, or shortly before or after that time;
27 and
page 75
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 4 Admissions
s. 97
1 (b) to which it is reasonably necessary to refer in order to
2 understand the admission.
3 Example for this section:
4 D admits to W, D's friend, that D committed a sexual offence against V.
5 In D's trial for the sexual offence, the prosecution may lead evidence
6 from W --
7 (a) that D made the admission to W as proof of the truth of that
8 admission; and
9 (b) that W formed the opinion that D was sane when D made the
10 admission.
11 Compare:
12 Evidence Act 1995 (Commonwealth) s. 81
13 97. Exclusion of evidence of admissions that is not first-hand
14 Section 96 does not prevent the hearsay rule applying to
15 evidence of an admission unless --
16 (a) it is given by a person who saw, heard or otherwise
17 perceived the admission being made; or
18 (b) it is a document in which the admission is made.
19 Compare:
20 Evidence Act 1995 (Commonwealth) s. 82
21 98. Exclusion of evidence of admissions as against third parties
22 (1) Section 96 does not prevent the hearsay rule or the opinion rule
23 applying to evidence of an admission in respect of the case of a
24 party (a third party) to the proceeding concerned who did not
25 make the admission or adduce the evidence.
26 (2) The evidence may be used in respect of the case of a third party
27 if the third party consents.
28 (3) Consent cannot be given in respect of part only of the evidence.
29 Compare:
30 Evidence Act 1995 (Commonwealth) s. 83
page 76
Evidence Bill 2024
Admissibility of evidence Part 3
Admissions Division 4
s. 99
1 99. Exclusion of admissions influenced by violence and certain
2 other conduct
3 (1) Evidence of an admission is not admissible unless the court is
4 satisfied that the admission, and the making of the admission,
5 were not influenced by --
6 (a) violent, oppressive, inhuman or degrading conduct,
7 whether towards the person who made the admission or
8 towards another person; or
9 (b) a threat of conduct of that kind.
10 (2) Subsection (1) only applies if the party against whom evidence
11 of the admission is adduced has raised in the proceeding an
12 issue about whether the admission or its making were
13 influenced as referred to in subsection (1).
14 Compare:
15 Evidence Act 1995 (Commonwealth) s. 84
16 100. Criminal proceedings: reliability of admissions by accused
17 (1) This section applies only in a criminal proceeding and only to
18 evidence of an admission made by an accused --
19 (a) to, or in the presence of, an investigating official who at
20 that time was performing functions in connection with
21 the investigation of the commission, or possible
22 commission, of an offence; or
23 (b) as a result of an act of another person who was, and who
24 the accused knew or reasonably believed to be, capable
25 of influencing the decision whether a prosecution of the
26 accused should be brought or should be continued.
27 Note for this subsection:
28 This subsection relates to the decision of the High Court of Australia in
29 Kelly v The Queen (2004) 218 CLR 216.
30 (2) Evidence of the admission is not admissible unless the
31 circumstances in which the admission was made make it
32 unlikely that the truth of the admission was adversely affected.
page 77
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 4 Admissions
s. 101
1 (3) Without limiting the matters that the court may take into
2 account for the purposes of subsection (2), it must take into
3 account --
4 (a) any relevant condition or characteristic of the person
5 who made the admission, including age, personality,
6 race, culture, ethnicity, religion and education and any
7 disability that the person has or appears to have; and
8 (b) if the admission was made in response to questioning --
9 (i) the nature of the questions and the manner in
10 which they were put; and
11 (ii) the nature of any threat, promise or other
12 inducement made to the person questioned.
13 Compare:
14 Evidence Act 1995 (Commonwealth) s. 85
15 101. Criminal proceedings: exclusion of records of oral
16 questioning
17 (1) This section applies only in a criminal proceeding and only if an
18 oral admission was made by an accused to an investigating
19 official in response to a question put or a representation made
20 by the official.
21 (2) A document prepared by or on behalf of the official is not
22 admissible to prove the contents of the question, representation
23 or response unless the accused has acknowledged that the
24 document is a true record of the question, representation or
25 response.
26 (3) The acknowledgment must be made by signing, initialling or
27 otherwise marking the document.
28 (4) This section does not apply to the following documents --
29 (a) an audio recording, or a transcript of that type of
30 recording;
page 78
Evidence Bill 2024
Admissibility of evidence Part 3
Admissions Division 4
s. 102
1 (b) a recording of visual images and sounds, or a transcript
2 of that type of recording.
3 Compare:
4 Evidence Act 1995 (Commonwealth) s. 86
5 102. Admissions made with authority
6 (1) For the purpose of determining whether a previous
7 representation made by a person is also taken to be an admission
8 by a party, the court must admit the representation if it is
9 reasonably open to find that --
10 (a) when the representation was made, the person had
11 authority to make statements on behalf of the party in
12 relation to the matter with respect to which the
13 representation was made; or
14 (b) when the representation was made, the person was an
15 employee of the party, or had authority otherwise to act
16 for the party, and the representation related to a matter
17 within the scope of the person's employment or
18 authority; or
19 (c) the representation was made by the person in
20 furtherance of a common purpose (whether lawful or
21 not) that the person had with the party or 1 or more
22 persons, including the party.
23 (2) For the purposes of this section, the hearsay rule does not apply
24 to a previous representation made by a person that tends to
25 prove --
26 (a) that the person had authority to make statements on
27 behalf of another person in relation to a matter; or
28 (b) that the person was an employee of another person or
29 had authority otherwise to act for another person; or
30 (c) the scope of the person's employment or authority.
31 Compare:
32 Evidence Act 1995 (Commonwealth) s. 87
page 79
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 4 Admissions
s. 103
1 103. Proof of admissions
2 For the purpose of determining under another provision of this
3 Division whether evidence of an admission is admissible, the
4 court must find that a particular person made the admission if it
5 is reasonably open to find that the person made the admission.
6 Compare:
7 Evidence Act 1995 (Commonwealth) s. 88
8 104. Criminal proceedings: evidence of silence
9 (1) In this section --
10 inference includes --
11 (a) an inference of consciousness of guilt; or
12 (b) an inference relevant to a party's credibility.
13 (2) In a criminal proceeding, an inference unfavourable to a party
14 must not be drawn from evidence that the party or another
15 person did not --
16 (a) answer 1 or more questions put to the party or other
17 person by an investigating official who, at that time, was
18 performing functions in connection with the
19 investigation of the commission, or possible
20 commission, of an offence; or
21 (b) respond to a representation made to the party or other
22 person by an investigating official who, at that time, was
23 performing functions in connection with the
24 investigation of the commission, or possible
25 commission, of an offence.
26 (3) Evidence that the party or person did not answer the question or
27 respond to the representation is not admissible if it can only be
28 used to draw the unfavourable inference.
29 (4) Subsection (2) does not prevent use of the evidence to prove
30 that the party or other person failed or refused to answer the
page 80
Evidence Bill 2024
Admissibility of evidence Part 3
Evidence of judgments and convictions Division 5
s. 105
1 question or to respond to the representation if the failure or
2 refusal is a fact in issue in the proceeding.
3 Compare:
4 Evidence Act 1995 (Commonwealth) s. 89
5 105. Criminal proceedings: discretion to exclude admissions
6 In a criminal proceeding, the court may refuse to admit evidence
7 of an admission, or refuse to admit the evidence to prove a
8 particular fact, if --
9 (a) the evidence is adduced by the prosecution; and
10 (b) having regard to the circumstances in which the
11 admission was made, it would be unfair to an accused to
12 use the evidence.
13 Compare:
14 Evidence Act 1995 (Commonwealth) s. 90
15 106. Criminal investigation rules about admissions not affected
16 This Division does not affect the operation of the Criminal
17 Investigation Act 2006 Part 11.
18 Division 5 -- Evidence of judgments and convictions
19 107. Exclusion of evidence of judgments and convictions
20 (1) Evidence of the decision, or of a finding of fact, in an Australian
21 or overseas proceeding is not admissible to prove the existence
22 of a fact that was in issue in that proceeding.
23 (2) Evidence that, under this Division, is not admissible to prove
24 the existence of a fact must not be used to prove that fact even if
25 it is relevant for another purpose.
26 Compare:
27 Evidence Act 1995 (Commonwealth) s. 91
page 81
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 5 Evidence of judgments and convictions
s. 108
1 108. Exceptions
2 (1) Section 107(1) does not prevent the admission or use of
3 evidence of the grant of probate, letters of administration or a
4 similar order of a court to prove --
5 (a) the death, or date of death, of a person; or
6 (b) the due execution of a testamentary document.
7 (2) In a criminal proceeding, section 107(1) does not prevent the
8 admission or use of evidence of a person's conviction of an
9 offence to prove the material facts comprising the elements of
10 the offence of which the person was convicted.
11 (3) Subsection (2) does not apply to a conviction for an offence --
12 (a) in respect of which a review or appeal (however
13 described) has been instituted but not finally
14 determined; or
15 (b) that has been quashed or set aside.
16 (4) In a civil proceeding, section 107(1) does not prevent the
17 admission or use of evidence that a party, or a person through or
18 under whom a party claims, has been convicted of an offence.
19 (5) Subsection (4) does not apply to a conviction for an offence --
20 (a) in respect of which a review or appeal (however
21 described) has been instituted but not finally
22 determined; or
23 (b) that has been quashed or set aside; or
24 (c) in respect of which a pardon has been given.
25 (6) The hearsay rule and the opinion rule do not apply to evidence
26 of a kind referred to in this section.
27 Compare:
28 Evidence Act 1995 (Commonwealth) s. 92
page 82
Evidence Bill 2024
Admissibility of evidence Part 3
Tendency and coincidence Division 6
s. 109
1 109. Savings
2 This Division does not affect the operation of --
3 (a) a law that relates to the admissibility or effect of
4 evidence of a conviction tendered in a proceeding
5 (including a criminal proceeding) for defamation; or
6 (b) a judgment in rem; or
7 (c) the law relating to res judicata or issue estoppel.
8 Compare:
9 Evidence Act 1995 (Commonwealth) s. 93
10 Division 6 -- Tendency and coincidence
11 110. Application of Division
12 (1) This Division does not apply to evidence that relates only to the
13 credibility of a witness.
14 (2) This Division does not apply to any part of a proceeding that
15 relates to bail or sentencing.
16 (3) This Division does not apply to evidence of the character,
17 reputation or conduct of a person, or a tendency that a person
18 has or had, if that character, reputation, conduct or tendency is a
19 fact in issue.
20 (4) Any principle or rule of common law or equity that prevents or
21 restricts the admissibility of evidence about propensity or
22 similar fact evidence in a proceeding is not relevant when
23 applying this Division to tendency evidence or coincidence
24 evidence about an accused or a party.
25 (5) In determining the probative value of tendency evidence or
26 coincidence evidence for the purposes of section 113(1)(b),
27 114(5), 115(1)(b) or 118(2), it is not open to the court to have
page 83
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 6 Tendency and coincidence
s. 111
1 regard to the possibility that the evidence may be the result of
2 collusion, concoction or contamination.
3 Compare:
4 Evidence Act 1995 (New South Wales) s. 94
5 111. Use of evidence for other purposes
6 (1) Evidence that under this Division is not admissible to prove a
7 particular matter must not be used to prove that matter even if it
8 is relevant for another purpose.
9 (2) Evidence that under this Division cannot be used against a party
10 to prove a particular matter must not be used against the party to
11 prove that matter even if it is relevant for another purpose.
12 Compare:
13 Evidence Act 1995 (New South Wales) s. 95
14 112. Failure to act
15 A reference in this Division to doing an act includes a reference
16 to failing to do that act.
17 Compare:
18 Evidence Act 1995 (New South Wales) s. 96
19 113. The tendency rule
20 (1) Evidence of the character, reputation or conduct of a person, or
21 a tendency that a person has or had, is not admissible to prove
22 that a person has or had a tendency (whether because of the
23 person's character or otherwise) to act in a particular way, or to
24 have a particular state of mind unless --
25 (a) the party seeking to adduce the evidence gave
26 reasonable notice in writing to each other party of the
27 party's intention to adduce the evidence; and
28 (b) the court thinks that the evidence will, either by itself or
29 having regard to other evidence adduced or to be
page 84
Evidence Bill 2024
Admissibility of evidence Part 3
Tendency and coincidence Division 6
s. 114
1 adduced by the party seeking to adduce the evidence,
2 have significant probative value.
3 (2) Subsection (1)(a) does not apply if --
4 (a) the evidence is adduced in accordance with any
5 directions made by the court under section 117(1); or
6 (b) the evidence is adduced to explain or contradict
7 tendency evidence adduced by another party.
8 Note for this section:
9 The tendency rule is subject to specific exceptions concerning
10 character of and expert opinion about accused persons (see
11 sections 129 and 130). Other provisions of this Act, or of other laws,
12 may operate as further exceptions.
13 Compare:
14 Evidence Act 1995 (New South Wales) s. 97
15 114. Admissibility of tendency evidence in proceeding involving
16 child sexual offence
17 (1) In this section --
18 child sexual offence --
19 (a) means each of the following (however described and
20 regardless of when it occurred) --
21 (i) a sexual offence against, or arising under, a law
22 of this State involving a complainant who was a
23 child at the time of the offence;
24 (ii) an offence against, or arising under, a law of this
25 State involving an unlawful sexual act with, or
26 directed towards, a person who was a child at the
27 time of the offence;
28 (iii) an offence of attempting to commit, conspiring
29 with another person to commit, inciting another
30 person to commit or attempting to procure
31 another person to commit, an offence referred to
32 in subparagraph (i) or (ii);
page 85
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 6 Tendency and coincidence
s. 114
1 (iv) an offence against, or arising under, a law of the
2 Commonwealth, another State, a Territory or a
3 foreign country that, if committed in this State,
4 would have been an offence of a kind referred to
5 in subparagraph (i), (ii) or (iii);
6 but
7 (b) does not include conduct of a person that has ceased to
8 be an offence against, or arising under, a law of this
9 State since the time when the person engaged in the
10 conduct.
11 (2) This section applies to a criminal proceeding in which the
12 commission by the accused of an act that constitutes, or may
13 constitute, a child sexual offence is a fact in issue.
14 (3) It is presumed that the following tendency evidence about the
15 accused will have significant probative value for the purposes of
16 sections 113(1)(b) and 118(2) --
17 (a) tendency evidence about the sexual interest the accused
18 has or had in children (even if the accused has not acted
19 on the interest);
20 (b) tendency evidence about the accused acting on a sexual
21 interest the accused has or had in children.
22 (4) Subsection (3) applies whether or not the sexual interest or act
23 to which the tendency evidence relates was directed at a
24 complainant in the proceeding, any other child or children
25 generally.
26 (5) Despite subsection (3), the court may determine that the
27 tendency evidence does not have significant probative value if it
28 is satisfied that there are sufficient grounds to do so.
29 (6) The following matters (whether considered individually or in
30 combination) are not to be taken into account when determining
31 whether there are sufficient grounds for the purposes of
32 subsection (5) unless the court considers there are exceptional
33 circumstances in relation to those matters (whether considered
page 86
Evidence Bill 2024
Admissibility of evidence Part 3
Tendency and coincidence Division 6
s. 115
1 individually or in combination) to warrant taking them into
2 account --
3 (a) the sexual interest or act to which the tendency evidence
4 relates (the tendency sexual interest or act) is different
5 from the sexual interest or act alleged in the proceeding
6 (the alleged sexual interest or act);
7 (b) the circumstances in which the tendency sexual interest
8 or act occurred are different from circumstances in
9 which the alleged sexual interest or act occurred;
10 (c) the personal characteristics of the subject of the
11 tendency sexual interest or act (for example, the
12 subject's age, sex or gender) are different to those of the
13 subject of the alleged sexual interest or act;
14 (d) the relationship between the accused and the subject of
15 the tendency sexual interest or act is different from the
16 relationship between the accused and the subject of the
17 alleged sexual interest or act;
18 (e) the period of time between the occurrence of the
19 tendency sexual interest or act and the occurrence of the
20 alleged sexual interest or act;
21 (f) the tendency sexual interest or act and alleged sexual
22 interest or act do not share distinctive or unusual
23 features;
24 (g) the level of generality of the tendency to which the
25 tendency evidence relates.
26 Compare:
27 Evidence Act 1995 (New South Wales) s. 97A
28 115. The coincidence rule
29 (1) Evidence that 2 or more events occurred is not admissible to
30 prove that a person did a particular act or had a particular state
31 of mind on the basis that, having regard to any similarities in the
32 events or the circumstances in which they occurred, or any
33 similarities in both the events and the circumstances in which
page 87
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 6 Tendency and coincidence
s. 116
1 they occurred, it is improbable that the events occurred
2 coincidentally unless --
3 (a) the party seeking to adduce the evidence gave
4 reasonable notice in writing to each other party of the
5 party's intention to adduce the evidence; and
6 (b) the court thinks that the evidence will, either by itself or
7 having regard to other evidence adduced or to be
8 adduced by the party seeking to adduce the evidence,
9 have significant probative value.
10 (2) Subsection (1) includes the use of evidence from 2 or more
11 witnesses claiming they are victims of offences committed by a
12 person who is an accused in a criminal proceeding to prove, on
13 the basis of similarities in the claimed acts or the circumstances
14 in which they occurred, that the accused did an act in issue in
15 the proceeding.
16 (3) Subsection (1)(a) does not apply if --
17 (a) the evidence is adduced in accordance with any
18 directions made by the court under section 117(2); or
19 (b) the evidence is adduced to explain or contradict
20 coincidence evidence adduced by another party.
21 Compare:
22 Evidence Act 1995 (New South Wales) s. 98
23 116. Requirements for notices
24 Notices given under section 113(1)(a) or 115(1)(a) must be
25 given in accordance with any regulations or rules of court made
26 for the purposes of this section.
27 Compare:
28 Evidence Act 1995 (New South Wales) s. 99
page 88
Evidence Bill 2024
Admissibility of evidence Part 3
Tendency and coincidence Division 6
s. 117
1 117. Court may dispense with notice requirements
2 (1) A court may, on the application of a party, direct that the
3 tendency rule is not to apply to particular tendency evidence
4 despite the party's failure to give notice under section 113(1)(a).
5 (2) A court may, on the application of a party, direct that the
6 coincidence rule is not to apply to particular coincidence
7 evidence despite the party's failure to give notice under
8 section 115(1)(a).
9 (3) An application under subsection (1) or (2) may be made either
10 before or after the time by which the party would, apart from
11 this section, be required to give, or to have given, the notice.
12 (4) In a civil proceeding, a party's application may be made without
13 notice of it having been given to 1 or more of the other parties.
14 (5) A direction under subsection (1) or (2) --
15 (a) is subject to any conditions the court thinks fit; and
16 (b) may be given either at or before the hearing.
17 (6) Without limiting the court's power to impose conditions on the
18 direction, those conditions may include 1 or more of the
19 following --
20 (a) a condition that the party give notice of its intention to
21 adduce the evidence to a specified party, or to each other
22 party other than a specified party;
23 (b) a condition that the party give that notice only in respect
24 of specified tendency evidence, or all tendency evidence
25 that the party intends to adduce other than specified
26 tendency evidence;
27 (c) a condition that the party give that notice only in respect
28 of specified coincidence evidence, or all coincidence
29 evidence that the party intends to adduce other than
30 specified coincidence evidence.
31 Compare:
32 Evidence Act 1995 (New South Wales) s. 100
page 89
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 7 Credibility
s. 118
1 118. Further restrictions on tendency evidence and coincidence
2 evidence adduced by prosecution
3 (1) This section only applies to a criminal proceeding and applies in
4 addition to sections 113 and 115.
5 (2) Tendency evidence about an accused, or coincidence evidence
6 about an accused, that is adduced by the prosecution cannot be
7 used against the accused unless the probative value of the
8 evidence outweighs the danger of unfair prejudice to the
9 accused.
10 (3) This section does not apply to tendency evidence that the
11 prosecution adduces to explain or contradict tendency evidence
12 adduced by the accused.
13 (4) This section does not apply to coincidence evidence that the
14 prosecution adduces to explain or contradict coincidence
15 evidence adduced by the accused.
16 Compare:
17 Evidence Act 1995 (New South Wales) s. 101
18 Division 7 -- Credibility
19 Subdivision 1 -- Preliminary
20 119. Term used: credibility evidence
21 In this Division --
22 credibility evidence, in relation to a witness or other person,
23 means evidence relevant to the credibility of the witness or
24 person that --
25 (a) is relevant only because it affects the assessment of the
26 credibility of the witness or person; or
27 (b) is relevant --
28 (i) because it affects the assessment of the
29 credibility of the witness or person; and
page 90
Evidence Bill 2024
Admissibility of evidence Part 3
Credibility Division 7
s. 120
1 (ii) for some other purpose for which it is not
2 admissible, or cannot be used, because of a
3 provision of Divisions 2 to 6.
4 Note for this section:
5 This section relates to the decision of the High Court of Australia in
6 Adam v The Queen (2001) 207 CLR 96.
7 Compare:
8 Evidence Act 1995 (Commonwealth) s. 101A
9 Subdivision 2 -- Credibility of witnesses
10 120. Credibility rule
11 Credibility evidence about a witness is not admissible.
12 Compare:
13 Evidence Act 1995 (Commonwealth) s. 102
14 121. Exception: cross-examination as to credibility
15 (1) The credibility rule does not apply to evidence adduced in
16 cross-examination of a witness (including the contents of a
17 document tendered in cross-examination of a witness) if the
18 evidence could substantially affect the assessment of the
19 credibility of the witness.
20 (2) Without limiting the matters to which the court may have regard
21 for the purposes of subsection (1), it must have regard to --
22 (a) whether the evidence tends to prove that the witness
23 made a false representation when --
24 (i) the witness was under an obligation to tell the
25 truth; and
26 (ii) the witness knew, or ought to have known, that
27 the representation was false;
28 and
page 91
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 7 Credibility
s. 122
1 (b) the period that has elapsed since the acts or events to
2 which the evidence relates were done or occurred.
3 Compare:
4 Evidence Act 1995 (Commonwealth) s. 103
5 122. Further protections: cross-examination of accused
6 (1) This section applies only to credibility evidence in a criminal
7 proceeding and applies in addition to section 121.
8 (2) An accused must not be cross-examined about a matter that is
9 relevant to the assessment of the accused's credibility unless the
10 court gives leave.
11 (3) Despite subsection (2), leave is not required for
12 cross-examination by the prosecutor about whether the
13 accused --
14 (a) is biased or has a motive to be untruthful; or
15 (b) is, or was, unable to be aware of or recall matters to
16 which the accused's evidence relates; or
17 (c) has made a prior inconsistent statement.
18 (4) Leave must not be given for cross-examination by the
19 prosecutor under subsection (2) unless evidence adduced by the
20 accused has been admitted that --
21 (a) tends to prove that a witness called by the prosecutor has
22 a tendency to be untruthful; and
23 (b) is relevant solely or mainly to the witness's credibility.
24 (5) A reference in subsection (4) to evidence does not include a
25 reference to evidence of conduct in relation to --
26 (a) the events the subject of the prosecution; or
27 (b) the investigation of the offence for which the accused is
28 being prosecuted.
page 92
Evidence Bill 2024
Admissibility of evidence Part 3
Credibility Division 7
s. 123
1 (6) Leave must not be given for cross-examination by another
2 accused unless --
3 (a) the evidence that the accused to be cross-examined has
4 given includes evidence adverse to the accused seeking
5 leave to cross-examine; and
6 (b) that evidence has been admitted.
7 Compare:
8 Evidence Act 1995 (Commonwealth) s. 104
9 123. Exception: rebutting denials by other evidence
10 (1) The credibility rule does not apply to evidence that is relevant to
11 a witness's credibility and that is adduced otherwise than from
12 the witness if --
13 (a) the substance of the evidence was put to the witness in
14 cross-examination of the witness and the witness denied,
15 or did not admit or agree to, the substance of the
16 evidence; and
17 (b) the court gives leave to adduce the evidence.
18 (2) Leave under subsection (1)(b) is not required if the evidence
19 tends to prove that the witness --
20 (a) is biased or has a motive for being untruthful; or
21 (b) has been convicted of an offence, including an offence
22 against the law of a foreign country; or
23 (c) has made a prior inconsistent statement; or
24 (d) is, or was, unable to be aware of matters to which the
25 witness's evidence relates; or
26 (e) has made a false representation while under an
27 obligation, imposed by or under an Australian law or a
28 law of a foreign country, to tell the truth and the witness
29 knew, or ought to have known, that the representation
30 was false.
31 Compare:
32 Evidence Act 1995 (Commonwealth) s. 106
page 93
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 7 Credibility
s. 124
1 124. Exception: re-establishing credibility
2 (1) The credibility rule does not apply to evidence adduced in
3 re-examination of a witness.
4 (2) The credibility rule does not apply to evidence of a prior
5 consistent statement of a witness if --
6 (a) evidence of a prior inconsistent statement of the witness
7 has been admitted; or
8 (b) it is or will be suggested (either expressly or by
9 implication) that evidence given by the witness has been
10 fabricated or reconstructed (whether deliberately or
11 otherwise) or is the result of a suggestion.
12 (3) Subsection (2) applies only if the court gives leave to adduce the
13 evidence of the prior consistent statement.
14 Compare:
15 Evidence Act 1995 (Commonwealth) s. 108
16 Subdivision 3 -- Credibility of persons who are not witnesses
17 125. Admissibility of evidence of credibility of person who has
18 made previous representation
19 (1) Credibility evidence about a person who made a representation
20 and who has not been called, and will not be called, to give
21 evidence in the proceeding is not admissible unless --
22 (a) evidence of the representation has been admitted in the
23 proceeding; and
24 (b) the credibility evidence could substantially affect the
25 assessment of the person's credibility.
26 (2) Without limiting the matters to which the court may have regard
27 for the purposes of subsection (1), it must have regard to --
28 (a) whether the evidence tends to prove that the person who
29 made the representation --
page 94
Evidence Bill 2024
Admissibility of evidence Part 3
Credibility Division 7
s. 126
1 (i) made a false representation when the person was
2 under an obligation to tell the truth; and
3 (ii) knew, or ought to have known, that the
4 representation was false;
5 and
6 (b) the period that elapsed between the doing of the acts or
7 the occurrence of the events to which the representation
8 related and the making of the representation.
9 Compare:
10 Evidence Act 1995 (Commonwealth) s. 108A
11 126. Further protections: previous representations of accused
12 who is not witness
13 (1) This section applies only to a criminal proceeding and applies in
14 addition to section 125.
15 (2) If the person referred to in section 125 is an accused, the
16 credibility evidence is not admissible unless the court gives
17 leave.
18 (3) Despite subsection (2), leave is not required if the evidence is
19 about whether the accused --
20 (a) is biased or has a motive to be untruthful; or
21 (b) is, or was, unable to be aware of or recall matters to
22 which the accused's previous representation relates; or
23 (c) has made a prior inconsistent statement.
24 (4) The prosecution must not be given leave under subsection (2)
25 unless evidence adduced by the accused has been admitted
26 that --
27 (a) tends to prove that a witness called by the prosecution
28 has a tendency to be untruthful; and
29 (b) is relevant solely or mainly to the witness's credibility.
page 95
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 7 Credibility
s. 127
1 (5) A reference in subsection (4) to evidence does not include a
2 reference to evidence of conduct in relation to --
3 (a) the events the subject of the prosecution; or
4 (b) the investigation of the offence for which the accused is
5 being prosecuted.
6 (6) Another accused must not be given leave under subsection (2)
7 unless the previous representation of the accused that has been
8 admitted includes evidence adverse to the accused seeking
9 leave.
10 Compare:
11 Evidence Act 1995 (Commonwealth) s. 108B
12 Subdivision 4 -- Persons with specialised knowledge
13 127. Exception: evidence of persons with specialised knowledge
14 (1) The credibility rule does not apply to evidence given by a
15 person concerning the credibility of another witness if --
16 (a) the person has specialised knowledge based on the
17 person's training, study or experience; and
18 (b) the evidence is evidence of an opinion of the person
19 that --
20 (i) is wholly or substantially based on that
21 knowledge; and
22 (ii) could substantially affect the assessment of the
23 credibility of a witness;
24 and
25 (c) the court gives leave to adduce the evidence.
26 (2) Without limiting subsection (1) --
27 (a) a reference in that subsection to specialised knowledge
28 includes a reference to specialised knowledge of child
29 development and child behaviour (including specialised
page 96
Evidence Bill 2024
Admissibility of evidence Part 3
Character Division 8
s. 128
1 knowledge of the impact of sexual abuse on children
2 and their behaviour during and following the abuse); and
3 (b) a reference in that subsection to an opinion of a person
4 includes, if the person has specialised knowledge of the
5 kind referred to in paragraph (a), a reference to an
6 opinion relating to either or both of the following --
7 (i) the development and behaviour of children
8 generally;
9 (ii) the development and behaviour of children who
10 have been victims of sexual abuse.
11 Compare:
12 Evidence Act 1995 (Commonwealth) s. 108C
13 Division 8 -- Character
14 128. Application
15 This Division applies only in a criminal proceeding.
16 Compare:
17 Evidence Act 1995 (Commonwealth) s. 109
18 129. Evidence about character of accused
19 (1) The hearsay rule, the opinion rule, the tendency rule and the
20 credibility rule do not apply to evidence adduced by an accused
21 to prove (directly or by implication) that the accused is, either
22 generally or in a particular respect, a person of good character.
23 (2) If evidence adduced to prove (directly or by implication) that an
24 accused is generally a person of good character has been
25 admitted, the hearsay rule, the opinion rule, the tendency rule
26 and the credibility rule do not apply to evidence adduced to
27 prove (directly or by implication) that the accused is not
28 generally a person of good character.
page 97
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 8 Character
s. 130
1 (3) If evidence adduced to prove (directly or by implication) that an
2 accused is a person of good character in a particular respect has
3 been admitted, the hearsay rule, the opinion rule, the tendency
4 rule and the credibility rule do not apply to evidence adduced to
5 prove (directly or by implication) that the accused is not a
6 person of good character in that respect.
7 Compare:
8 Evidence Act 1995 (Commonwealth) s. 110
9 130. Evidence about character of co-accused
10 (1) The hearsay rule and the tendency rule do not apply to evidence
11 of an accused's character if --
12 (a) the evidence is evidence of an opinion about the accused
13 adduced by another accused; and
14 (b) the person whose opinion it is has specialised
15 knowledge based on the person's training, study or
16 experience; and
17 (c) the opinion is wholly or substantially based on that
18 knowledge.
19 (2) If the evidence has been admitted, the hearsay rule, the opinion
20 rule and the tendency rule do not apply to evidence adduced to
21 prove that the admitted evidence should not be accepted.
22 Compare:
23 Evidence Act 1995 (Commonwealth) s. 111
24 131. Leave required to cross-examine about character of accused
25 or co-accused
26 An accused must not be cross-examined about matters arising
27 out of evidence of a kind referred to in this Division unless the
28 court gives leave.
29 Compare:
30 Evidence Act 1995 (Commonwealth) s. 112
page 98
Evidence Bill 2024
Admissibility of evidence Part 3
Identification evidence Division 9
s. 132
1 Division 9 -- Identification evidence
2 132. Application of Division
3 This Division applies only in a criminal proceeding.
4 Compare:
5 Evidence Act 1995 (Commonwealth) s. 113
6 133. Terms used
7 In this Division --
8 identification evidence means evidence that is an assertion, or a
9 report (whether oral or in writing) of an assertion, made by a
10 person, being an assertion --
11 (a) to the effect that an accused was, or resembles (visually,
12 aurally or otherwise), a person who --
13 (i) was present at or near a place where the offence
14 for which the accused is being prosecuted was
15 committed at or about the time at which the
16 offence was committed; or
17 (ii) was present at or near a place where an act
18 connected to that offence was done at or about
19 the time at which the act was done;
20 and
21 (b) that is based wholly or partly on what the person making
22 the assertion saw, heard or otherwise perceived at that
23 place and time;
24 identification record means an image or any other document
25 that includes, or could be used to produce, images or sounds that
26 could be used to identify a person;
27 police-assisted identification evidence means identification
28 evidence relating to an identification made wholly or partly by a
page 99
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 9 Identification evidence
s. 134
1 person who made the identification using identification records
2 provided by police.
3 Compare:
4 Evidence Act 1995 (Commonwealth) s. 115 and Dictionary Part 1
5 134. Exclusion of certain police-assisted identification evidence
6 (1) Police-assisted identification evidence adduced by the
7 prosecutor is not admissible if the identification records used
8 suggest that they are identification records of persons in
9 custody.
10 (2) If police-assisted identification evidence adduced by the
11 prosecutor is admitted into evidence, the judge must give the
12 following direction to the jury --
13 (a) if the identification record of the accused was made after
14 the accused was taken into custody -- a direction
15 informing the jury that the identification record was
16 made after the accused was taken into that custody;
17 (b) otherwise -- a direction warning the jury that they must
18 not assume that the accused has a criminal record or has
19 previously been charged with an offence solely because
20 the identification was made using identification records
21 provided by police.
22 (3) The judge must give a direction under subsection (2) unless
23 satisfied that there is good reason for not giving that direction.
24 (4) The judge must state the reason for refusing to give a direction
25 under subsection (2) if the direction is requested by the accused.
26 (5) This section does not render inadmissible police-assisted
27 identification evidence adduced by the prosecutor that
28 contradicts or qualifies police-assisted identification evidence
29 adduced by the accused.
30 Compare:
31 Evidence Act 1995 (Commonwealth) s. 115
page 100
Evidence Bill 2024
Admissibility of evidence Part 3
Evidence of family violence Division 10
s. 135
1 135. Directions to jury
2 (1) If identification evidence has been admitted, the judge must
3 inform the jury --
4 (a) that there is a special need for caution before accepting
5 identification evidence; and
6 (b) of the reasons for that need for caution, both generally
7 and in the circumstances of the case.
8 (2) It is not necessary that a particular form of words be used in
9 informing the jury.
10 Compare:
11 Evidence Act 1995 (Commonwealth) s. 116
12 Division 10 -- Evidence of family violence
13 Subdivision 1 -- Preliminary
14 136. Terms used
15 In this Division --
16 family member has the meaning given in the Restraining
17 Orders Act 1997 section 4(3);
18 help-seeking behaviour --
19 (a) means any action undertaken by a victim of family
20 violence to address, or attempt to address, any aspect of
21 the family violence; and
22 (b) includes reporting the family violence to the police,
23 obtaining a restraining order, finding accommodation in
24 a refuge, separating from an abusive person, or seeking
25 counselling or external support;
26 safety option, in relation to an accused who is (or may be) a
27 victim of family violence, means an act that may have stopped
page 101
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 10 Evidence of family violence
s. 137
1 the violence, other than an act that constitutes (or allegedly
2 constitutes) an offence with which the person is charged.
3 Compare:
4 Evidence Act 1906 s. 37
5 137. What may constitute evidence of family violence
6 (1) For the purposes of this Division, evidence of family violence,
7 in relation to a person, includes (but is not limited to) evidence
8 of any of the following --
9 (a) the history of the relationship between the person and a
10 family member, including violence by the family
11 member towards the person, or by the person towards
12 the family member, or by the family member of the
13 person in relation to any other family member;
14 (b) the cumulative effect of family violence, including the
15 psychological effect, on the person or a family member
16 affected by that violence;
17 (c) social, cultural or economic factors that impact on the
18 person or a family member who has been affected by
19 family violence;
20 (d) responses by family, community or agencies to family
21 violence, including further violence that may be used by
22 a family member to prevent, or in retaliation to,
23 help-seeking behaviour or use of safety options by the
24 person;
25 (e) ways in which social, cultural, economic or personal
26 factors have affected any help-seeking behaviour
27 undertaken by the person, or the safety options
28 realistically available to the person, in response to
29 family violence;
30 (f) ways in which violence by the family member towards
31 the person, or the lack of safety options, were
32 exacerbated by inequities experienced by the person,
page 102
Evidence Bill 2024
Admissibility of evidence Part 3
Evidence of family violence Division 10
s. 138
1 including inequities associated with (but not limited to)
2 race, poverty, gender, disability or age;
3 (g) the general nature and dynamics of relationships
4 affected by family violence, including the possible
5 consequences of separation from a person who commits
6 family violence;
7 (h) the psychological effect of family violence on people
8 who are or have been in a relationship affected by
9 family violence;
10 (i) social or economic factors that impact on people who
11 are or have been in a relationship affected by family
12 violence.
13 (2) Subsection (1) does not affect the operation of the Restraining
14 Orders Act 1997 section 5A(2).
15 Compare:
16 Evidence Act 1906 s. 38
17 Subdivision 2 -- Admissibility of evidence of family violence
18 138. Expert evidence of family violence
19 (1) In this section --
20 expert, on the subject of family violence, means a person who
21 has specialised knowledge, based on training, study or
22 experience, on the subject of family violence (including any
23 matter that may constitute evidence of family violence).
24 (2) This section applies to any proceeding in which evidence of
25 family violence is relevant to a fact in issue.
26 (3) The evidence of an expert on the subject of family violence is
27 admissible in relation to any matter that may constitute evidence
28 of family violence.
page 103
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 10 Evidence of family violence
s. 139
1 (4) Evidence given by the expert may include --
2 (a) evidence about the nature and effects of family violence
3 on any person; and
4 (b) evidence about the effect of family violence on a
5 particular person who has been the subject of family
6 violence.
7 (5) This section does not affect the operation of section 94 or 127.
8 Compare:
9 Evidence Act 1906 s. 39
10 139. Evidence of family violence: general provision
11 Evidence of family violence is admissible if family violence is
12 relevant to a fact in issue.
13 Compare:
14 Evidence Act 1906 s. 39A
15 140. Evidence of family violence: self-defence
16 Without limiting any other evidence that may be adduced, in a
17 criminal proceeding in which self-defence in response to family
18 violence is an issue, evidence of family violence may be
19 relevant to determining whether --
20 (a) a person has a belief that an act was necessary to defend
21 the person or another person from a harmful act,
22 including a harmful act that was not imminent; or
23 (b) a person's act was a reasonable response by the person
24 in the circumstances as the person believed them to be;
25 or
26 (c) there are reasonable grounds for a particular belief held
27 by a person.
28 Compare:
29 Evidence Act 1906 s. 39B
page 104
Evidence Bill 2024
Admissibility of evidence Part 3
Evidence of family violence Division 10
s. 141
1 Subdivision 3 -- Directions relating to family violence in criminal
2 proceedings
3 141. Request for direction on family violence: self-defence
4 (1) In a criminal proceeding before a jury in which self-defence in
5 response to family violence is an issue, the legal counsel acting
6 for the accused (or, if the accused is unrepresented, the accused)
7 may request at any time that the judge direct the jury on family
8 violence in accordance with --
9 (a) section 143; and
10 (b) all or specified parts of section 144.
11 (2) The judge must give a requested direction on family violence,
12 including all or specified parts of section 144 if requested,
13 unless satisfied there is good reason for not doing so.
14 (3) If a direction on family violence is not requested, the judge may
15 give the direction if the judge considers that it is in the interests
16 of justice to do so.
17 (4) The judge --
18 (a) must give the direction as soon as practicable after the
19 request is made; and
20 (b) may give the direction before any evidence is adduced
21 in the proceeding.
22 (5) The judge may repeat a direction at any time during the
23 proceeding.
24 Compare:
25 Evidence Act 1906 s. 39C
26 142. Request for direction on family violence: general
27 (1) In a criminal proceeding before a jury in which family violence
28 is an issue, the prosecutor or the legal counsel acting for the
29 accused (or, if the accused is unrepresented, the accused) may
page 105
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 10 Evidence of family violence
s. 143
1 request at any time that the judge direct the jury on family
2 violence in accordance with all or specified parts of section 144.
3 (2) The judge must give a requested direction on family violence,
4 including all or specified parts of section 144 if requested,
5 unless satisfied there is good reason for not doing so.
6 (3) If a direction on family violence is not requested, the judge may
7 give the direction if the judge considers that it is in the interests
8 of justice to do so.
9 (4) The judge --
10 (a) must give the direction as soon as practicable after the
11 request is made; and
12 (b) may give the direction before any evidence is adduced
13 in the proceeding.
14 (5) The judge may repeat a direction at any time during the
15 proceeding.
16 Compare:
17 Evidence Act 1906 s. 39D
18 143. Content of direction on family violence: self-defence
19 In a direction under section 141, the judge must inform the jury
20 that --
21 (a) self-defence is, or is likely to be, an issue in the trial;
22 and
23 (b) as a matter of law, evidence of family violence may be
24 relevant to determining whether the accused acted in
25 self-defence; and
26 (c) evidence in the trial is likely to include evidence of
27 family violence committed by the victim against the
28 accused or another person whom the accused was
29 defending.
30 Compare:
31 Evidence Act 1906 s. 39E
page 106
Evidence Bill 2024
Admissibility of evidence Part 3
Evidence of family violence Division 10
s. 144
1 144. Content of direction on family violence: general
2 (1) In a direction under section 141 or 142, the judge may inform
3 the jury of all or any of the following matters --
4 (a) that family violence --
5 (i) is not limited to physical abuse and may, for
6 example, include sexual abuse, psychological
7 abuse or financial abuse; and
8 (ii) may amount to violence against a person even
9 though it is immediately directed at another
10 person; and
11 (iii) may consist of a single act; and
12 (iv) may consist of separate acts that form part of a
13 pattern of behaviour that can amount to abuse
14 even though some or all of those acts may, when
15 viewed in isolation, appear to be minor or trivial;
16 (b) if relevant, that experience shows that --
17 (i) people may react differently to family violence
18 and there is no typical, proper or normal
19 response to family violence; and
20 (ii) it is not uncommon for a person who has been
21 subjected to family violence to stay with an
22 abusive partner after the onset of family
23 violence, or to leave and then return to the
24 partner; and
25 (iii) it is not uncommon for a person who has been
26 subjected to family violence not to report family
27 violence to police or seek assistance to stop
28 family violence; and
29 (iv) decisions made by a person subjected to family
30 violence about how to address, respond to or
31 avoid family violence may be influenced by a
32 variety of factors; and
page 107
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 10 Evidence of family violence
s. 144
1 (v) it is not uncommon for a decision to leave an
2 abusive partner, or to seek assistance, to increase
3 apprehension about, or the actual risk of, harm;
4 (c) in the case of self-defence, that, as a matter of law,
5 evidence that the accused assaulted the victim on a
6 previous occasion does not mean that the accused could
7 not have been acting in self-defence in relation to the
8 offence charged.
9 (2) The judge may also indicate that behaviour, or patterns of
10 behaviour, that may constitute family violence may include (but
11 are not limited to) the following --
12 (a) placing or keeping a person in a dependent or
13 subordinate relationship;
14 (b) isolating a person from family, friends or other sources
15 of support;
16 (c) controlling, regulating or monitoring a person's
17 day-to-day activities;
18 (d) depriving or restricting a person's freedom of movement
19 or action;
20 (e) restricting a person's ability to resist violence;
21 (f) frightening, humiliating, degrading or punishing a
22 person, including punishing a person for resisting
23 violence;
24 (g) compelling a person to engage in unlawful or harmful
25 conduct.
26 (3) If the judge makes a direction that relates to
27 subsection (1)(b)(iv), the judge may also indicate that decisions
28 made by a person subjected to family violence about how to
29 address, respond to or avoid family violence may be influenced
30 by matters such as the following --
31 (a) the family violence itself;
page 108
Evidence Bill 2024
Admissibility of evidence Part 3
Evidence of family violence Division 10
s. 145
1 (b) social, cultural, economic or personal factors or
2 inequities experienced by the person, including
3 inequities associated with (but not limited to) race,
4 poverty, gender, disability or age;
5 (c) responses by family, community or agencies to the
6 family violence or to any help-seeking behaviour or use
7 of safety options by the person;
8 (d) the provision of, or failure in the provision of, safety
9 options that might realistically have provided ongoing
10 safety to the person, and the person's perceptions of how
11 effective those safety options might have been to
12 prevent further harm;
13 (e) further violence, or the threat of further violence, used
14 by a family member to prevent, or in retaliation to, any
15 help-seeking behaviour or use of safety options by the
16 person.
17 Compare:
18 Evidence Act 1906 s. 39F
19 145. Application to criminal proceeding without jury
20 In a criminal proceeding in which there is no jury, the court's
21 reasoning with respect to any matter for which a direction on
22 family violence makes provision must, to the extent that the
23 court thinks fit, be consistent with how a jury would have been
24 directed in the particular case.
25 Compare:
26 Evidence Act 1906 s. 39G
page 109
Evidence Bill 2024
Part 3 Admissibility of evidence
Division 10 Evidence of family violence
s. 146
1 146. Other directions may be given
2 This Subdivision does not affect any other power of a judge to
3 give a warning to, or to inform, the jury, including in relation to
4 evidence given by an expert witness.
5 Note for this section:
6 Part 8 Division 3 contains further provisions about warnings and
7 information that must or may be given to a jury.
8 Compare:
9 Evidence Act 1906 s. 39C(6) and 39D(6)
10 Subdivision 4 -- Application to civil proceedings
11 147. Court may take into account family violence direction
12 matters
13 (1) In this section --
14 family violence direction matter means a matter mentioned in
15 section 144 that may be included in a direction on family
16 violence in a criminal proceeding in which family violence is an
17 issue.
18 (2) In a civil proceeding in which family violence is an issue, the
19 court may treat any of the family violence direction matters that
20 are relevant to the proceeding as matters for which proof is not
21 required.
22 (3) This section does not prevent evidence being adduced of a
23 family violence direction matter.
page 110
Evidence Bill 2024
Privileges Part 4
Client legal privilege Division 1
s. 148
1 Part 4 -- Privileges
2 Division 1 -- Client legal privilege
3 148. Terms used
4 (1) In this Division --
5 client includes the following --
6 (a) a person or body who engages a legal representative to
7 provide legal services or who employs a legal
8 representative (including under a contract of service);
9 (b) an employee or agent of a client;
10 (c) an employer of a legal representative if the employer
11 is --
12 (i) the Commonwealth or a State or Territory; or
13 (ii) a body established by a law of the
14 Commonwealth or a State or Territory;
15 (d) if, under a law of a State or Territory relating to persons
16 who lack capacity, a manager, committee or person
17 (however described) is for the time being acting in
18 respect of the person, estate or property of a client -- the
19 manager, committee or person acting;
20 (e) if a client has died -- a personal representative of the
21 client;
22 (f) a successor to the rights and obligations of a client,
23 being rights and obligations in respect of which a
24 confidential communication was made;
25 confidential communication means a communication made in
26 such circumstances that, when it was made, either the person
27 who made it or the person to whom it was made was under an
28 express or implied obligation not to disclose its contents,
29 whether or not the obligation arises under law;
30 confidential document means a document prepared in such
31 circumstances that, when it was prepared, either the person who
page 111
Evidence Bill 2024
Part 4 Privileges
Division 1 Client legal privilege
s. 148
1 prepared it or the person for whom it was prepared was under an
2 express or implied obligation not to disclose its contents,
3 whether or not the obligation arises under law;
4 legal representative means --
5 (a) a lawyer; or
6 (b) a natural person who is properly registered or authorised
7 to engage in legal practice in a foreign country by the
8 entity having the function, conferred by the law of the
9 foreign country, of registering or authorising persons to
10 engage in legal practice in the foreign country; or
11 (c) a natural person who, under the law of a foreign country,
12 is permitted to engage in legal practice in the foreign
13 country; or
14 (d) an employee or agent of a person referred to in
15 paragraph (a), (b) or (c);
16 party includes the following --
17 (a) an employee or agent of a party;
18 (b) if, under a law of a State or Territory relating to persons
19 who lack capacity, a manager, committee or person
20 (however described) is for the time being acting in
21 respect of the person, estate or property of a party -- the
22 manager, committee or person acting;
23 (c) if a party has died -- a personal representative of the
24 party;
25 (d) a successor to the rights and obligations of a party, being
26 rights and obligations in respect of which a confidential
27 communication was made.
28 (2) A reference in this Division to the commission of an act
29 includes a failure to act.
30 Compare:
31 Evidence Act 1995 (Commonwealth) s. 117
page 112
Evidence Bill 2024
Privileges Part 4
Client legal privilege Division 1
s. 149
1 149. Legal advice
2 (1) Evidence must not be adduced if, on objection by a client, the
3 court finds that adducing the evidence would result in disclosure
4 of --
5 (a) a confidential communication made between the client
6 and a legal representative that is privileged under this
7 section; or
8 (b) a confidential communication made between 2 or more
9 legal representatives acting for the client that is
10 privileged under this section; or
11 (c) the contents of a confidential document (whether
12 delivered or not) prepared by the client, legal
13 representative or another person, being a confidential
14 document that is privileged under this section.
15 (2) A confidential communication, or a confidential document, is
16 privileged under this section if it was made or prepared for the
17 dominant purpose of the legal representative, or 1 or more of the
18 legal representatives, providing legal advice to the client.
19 Compare:
20 Evidence Act 1995 (Commonwealth) s. 118
21 150. Litigation
22 (1) Evidence must not be adduced if, on objection by a client, the
23 court finds that adducing the evidence would result in disclosure
24 of --
25 (a) a confidential communication between the client and
26 another person, or between a legal representative acting
27 for the client and another person, that is privileged under
28 this section; or
29 (b) the contents of a confidential document (whether
30 delivered or not), being a confidential document that is
31 privileged under this section.
page 113
Evidence Bill 2024
Part 4 Privileges
Division 1 Client legal privilege
s. 151
1 (2) A confidential communication, or a confidential document, is
2 privileged under this section if it was made or prepared for the
3 dominant purpose of the client being provided with professional
4 legal services relating to --
5 (a) an Australian or overseas proceeding (including the
6 proceeding before the court) in which the client is or
7 may be, or was or might have been, a party; or
8 (b) an anticipated or pending Australian or overseas
9 proceeding in which the client is or may be, or was or
10 might have been, a party.
11 Compare:
12 Evidence Act 1995 (Commonwealth) s. 119
13 151. Unrepresented parties
14 (1) Evidence must not be adduced if, on objection by a party who is
15 not represented in the proceeding by a legal representative, the
16 court finds that adducing the evidence would result in disclosure
17 of --
18 (a) a confidential communication made between the party
19 and another person that is privileged under this section;
20 or
21 (b) the contents of a confidential document (whether
22 delivered or not) that was prepared, either by or at the
23 direction or request of, the party, being a confidential
24 document that is privileged under this section.
25 (2) A confidential communication, or a confidential document, is
26 privileged under this section if it was made or prepared for the
27 dominant purpose of preparing for or conducting the
28 proceeding.
29 Compare:
30 Evidence Act 1995 (Commonwealth) s. 120
page 114
Evidence Bill 2024
Privileges Part 4
Client legal privilege Division 1
s. 152
1 152. Loss of client legal privilege: generally
2 (1) This Division does not prevent the adducing of evidence
3 relevant to a question concerning the intentions, or competence
4 in law, of a client or party who has died.
5 (2) This Division does not prevent the adducing of evidence if,
6 were the evidence not adduced, the court would be prevented, or
7 it could reasonably be expected that the court would be
8 prevented, from enforcing an order of an Australian court.
9 (3) This Division does not prevent the adducing of evidence of a
10 communication or document that affects a right of a person.
11 Compare:
12 Evidence Act 1995 (Commonwealth) s. 121
13 153. Loss of client legal privilege: consent and related matters
14 (1) This Division does not prevent the adducing of evidence given
15 with the consent of the client or party concerned.
16 (2) This Division does not prevent the adducing of evidence if the
17 client or party concerned has acted in a way that is inconsistent
18 with the client or party objecting to the adducing of the evidence
19 because it would result in a disclosure of a kind referred to in
20 section 149(1), 150(1) or 151(1).
21 (3) Without limiting subsection (2), a client or party is taken to
22 have acted in a way that is inconsistent with objecting to the
23 adducing of the evidence if --
24 (a) the client or party knowingly and voluntarily disclosed
25 the substance of the evidence to another person; or
26 (b) the substance of the evidence has been disclosed with
27 the express or implied consent of the client or party.
page 115
Evidence Bill 2024
Part 4 Privileges
Division 1 Client legal privilege
s. 153
1 (4) The reference in subsection (3)(a) to a knowing and voluntary
2 disclosure does not include a reference to a disclosure by a
3 person who was, at the time of the disclosure, an employee or
4 agent of the client or party or of a legal representative of the
5 client or party unless the employee or agent was authorised by
6 the client, party or legal representative to make the disclosure.
7 (5) A client or party is not taken to have acted in a manner
8 inconsistent with the client or party objecting to the adducing of
9 the evidence merely because --
10 (a) the substance of the evidence has been disclosed --
11 (i) in the course of making a confidential
12 communication or preparing a confidential
13 document; or
14 (ii) as a result of duress or deception; or
15 (iii) under compulsion of law; or
16 (iv) if the client or party is a body established by, or a
17 person holding an office under, an Australian
18 law -- to the Minister, or the Minister of the
19 Commonwealth, the State or Territory,
20 administering the law, or part of the law, under
21 which the body is established or the office is
22 held;
23 or
24 (b) of a disclosure by a client to another person if the
25 disclosure concerns a matter in relation to which the
26 same legal representative is providing, or is to provide,
27 professional legal services to both the client and the
28 other person; or
29 (c) of a disclosure to a person with whom the client or party
30 had, at the time of the disclosure, a common interest
31 relating to the proceeding or an anticipated or pending
32 proceeding in an Australian court or a foreign court.
page 116
Evidence Bill 2024
Privileges Part 4
Client legal privilege Division 1
s. 154
1 (6) This Division does not prevent the adducing of evidence of a
2 document that a witness has used to try to revive the witness's
3 memory about a fact or opinion or has used as mentioned in
4 section 41 or 42.
5 Compare:
6 Evidence Act 1995 (Commonwealth) s. 122
7 154. Loss of client legal privilege: accused
8 In a criminal proceeding, this Division does not prevent an
9 accused from adducing evidence unless it is evidence of --
10 (a) a confidential communication made between a
11 co-accused and a legal representative acting for the
12 co-accused in connection with the prosecution of that
13 co-accused; or
14 (b) the contents of a confidential document prepared by a
15 co-accused or by a legal representative acting for the
16 co-accused in connection with the prosecution of that
17 co-accused.
18 Compare:
19 Evidence Act 1995 (Commonwealth) s. 123
20 155. Loss of client legal privilege: joint clients
21 (1) This section only applies to a civil proceeding in connection
22 with which 2 or more parties have, before the commencement of
23 the proceeding, jointly retained a legal representative in relation
24 to the same matter.
25 (2) This Division does not prevent 1 of those parties from adducing
26 evidence of --
27 (a) a communication made by any of them to the legal
28 representative in connection with that matter; or
page 117
Evidence Bill 2024
Part 4 Privileges
Division 1 Client legal privilege
s. 156
1 (b) the contents of a confidential document prepared by or
2 at the direction or request of any of them in connection
3 with that matter.
4 Compare:
5 Evidence Act 1995 (Commonwealth) s. 124
6 156. Loss of client legal privilege: misconduct
7 (1) In this section --
8 power means a power conferred by or under an Australian law.
9 (2) This Division does not prevent the adducing of evidence of a
10 communication, or the contents of a document, made or
11 prepared by a client or legal representative (or both), or a party
12 who is not represented in a proceeding by a legal representative,
13 if --
14 (a) the communication or document was made or prepared
15 in furtherance of the commission of a fraud, an offence
16 or an act that renders a person liable to a civil penalty; or
17 (b) the client or legal representative (or both), or the party,
18 knew or ought reasonably to have known that the
19 communication or document was made or prepared in
20 furtherance of a deliberate abuse of power.
21 (3) If the commission of the fraud, offence or act, or the abuse of
22 power, is a fact in issue, the court may find that a
23 communication was made or a document was prepared in
24 furtherance of the fraud, offence or act or the abuse of power
25 if there are reasonable grounds for finding that --
26 (a) the fraud, offence or act, or the abuse of power, was
27 committed; and
28 (b) the communication was made or the document was
29 prepared in furtherance of the commission of the fraud,
30 offence or act or the abuse of power.
31 Compare:
32 Evidence Act 1995 (Commonwealth) s. 125
page 118
Evidence Bill 2024
Privileges Part 4
Professional confidential relationship privilege Division 2
s. 157
1 157. Loss of client legal privilege: related communications and
2 documents
3 If, because of the application of section 152, 153, 154, 155
4 or 156, this Division does not prevent the adducing of evidence
5 of a communication or the contents of a document, those
6 sections do not prevent the adducing of evidence of another
7 communication or document if it is reasonably necessary to
8 enable a proper understanding of the communication or
9 document.
10 Example for this section:
11 A legal representative advises a client to understate the client's income
12 for the previous year to evade taxation because of potential tax liability
13 "as set out in my previous letter to you dated 11 August 2019". In a
14 proceeding against the taxpayer for tax evasion, evidence of the
15 contents of the letter dated 11 August 2019 may be admissible (even if
16 that letter would otherwise be privileged) to enable a proper
17 understanding of the second letter.
18 Compare:
19 Evidence Act 1995 (Commonwealth) s. 126
20 Division 2 -- Professional confidential relationship privilege
21 158. Terms used
22 (1) In this Division --
23 confidant --
24 (a) means a person to whom a communication is made in
25 confidence; and
26 (b) includes a journalist (as defined in section 179);
27 protected confidence means a communication made by a person
28 in confidence to a confidant --
29 (a) in the course of a relationship in which the confidant
30 was acting in a professional capacity; and
31 (b) when the confidant was under an express or implied
32 obligation not to disclose its contents, whether or not the
33 obligation arises under law or can be inferred from the
page 119
Evidence Bill 2024
Part 4 Privileges
Division 2 Professional confidential relationship privilege
s. 159
1 nature of the relationship between the person and the
2 confidant;
3 protected confider means a person who made a protected
4 confidence;
5 protected identity information means information about, or
6 enabling a person to ascertain, the identity of the person who
7 made a protected confidence.
8 (2) For the purposes of this Division, if a person makes a
9 communication in confidence to a minister of religion acting in
10 the minister's capacity as a minister of religion and in
11 accordance with the tenets of the minister's faith or religion, the
12 communication is made in the course of a relationship in which
13 the minister is acting in a professional capacity.
14 (3) For the purposes of this Division, a communication may be
15 made in confidence even if it is made in the presence of a third
16 party if the third party's presence is necessary to facilitate
17 communication.
18 Compare:
19 Evidence Act 1906 s. 20A
20 159. Exclusion of evidence of protected confidences
21 (1) A court may direct that evidence not be adduced in a proceeding
22 if the court finds that adducing it would disclose --
23 (a) a protected confidence; or
24 (b) the contents of a document recording a protected
25 confidence; or
26 (c) protected identity information.
27 (2) The court may give a direction under subsection (1) --
28 (a) on its own initiative; or
29 (b) on the application of the protected confider or confidant
30 concerned (whether or not either is a party).
page 120
Evidence Bill 2024
Privileges Part 4
Professional confidential relationship privilege Division 2
s. 159
1 (3) The court must give a direction under subsection (1) if satisfied
2 that --
3 (a) it is likely that harm would or might be caused (whether
4 directly or indirectly) to a protected confider if the
5 evidence is adduced; and
6 (b) the nature and extent of the harm outweighs the
7 desirability of the evidence being given.
8 (4) Without limiting the matters that the court may take into
9 account for the purposes of this section, the court must take into
10 account the following matters --
11 (a) the probative value of the evidence in the proceeding;
12 (b) the importance of the evidence in the proceeding;
13 (c) the nature and gravity of the relevant offence, cause of
14 action or defence and the nature of the subject matter of
15 the proceeding;
16 (d) the availability of any other evidence concerning the
17 matters to which the protected confidence or protected
18 identity information relates;
19 (e) the likely effect of adducing evidence of the protected
20 confidence or protected identity information, including
21 the likelihood of harm, and the nature and extent of
22 harm that would be caused to the protected confider;
23 (f) the means (including any ancillary orders that may be
24 made under section 162) available to the court to limit
25 the harm or extent of the harm that is likely to be caused
26 if evidence of the protected confidence or the protected
27 identity information is disclosed;
28 (g) if the proceeding is a criminal proceeding -- whether
29 the party seeking to adduce evidence of the protected
30 confidence or protected identity information is an
31 accused or the prosecutor;
page 121
Evidence Bill 2024
Part 4 Privileges
Division 2 Professional confidential relationship privilege
s. 160
1 (h) whether the substance of the protected confidence or the
2 protected identity information has already been
3 disclosed by the protected confider or any other person;
4 (i) the public interest in preserving the confidentiality of
5 protected confidences;
6 (j) the public interest in preserving the confidentiality of
7 protected identity information.
8 (5) The court must state the reason for giving or refusing to give a
9 direction under this section.
10 Compare:
11 Evidence Act 1906 s. 20C
12 160. Loss of professional confidential relationship privilege:
13 consent
14 This Division does not prevent the adducing of evidence given
15 with the consent of the protected confider concerned.
16 Compare:
17 Evidence Act 1906 s. 20D
18 161. Loss of professional confidential relationship privilege:
19 misconduct
20 (1) This Division does not prevent the adducing of evidence of a
21 communication made or the contents of a document prepared in
22 the furtherance of the commission of a fraud or an offence or
23 the commission of an act that renders a person liable to a civil
24 penalty.
25 (2) If the commission of the fraud, offence or act is a fact in issue,
26 the court may find that the communication was made, or the
27 document was prepared, in furtherance of the commission or the
28 fraud, offence or act if there are reasonable grounds for finding
29 that --
30 (a) the fraud, offence or act was committed; and
page 122
Evidence Bill 2024
Privileges Part 4
Professional confidential relationship privilege Division 2
s. 162
1 (b) the communication was made or the document was
2 prepared in furtherance of the commission of the fraud,
3 offence or act.
4 Compare:
5 Evidence Act 1995 (New South Wales) s. 126D
6 162. Ancillary orders
7 Without limiting any action that the court may take to limit the
8 possible harm, or extent of the harm, likely to be caused by the
9 disclosure of evidence of a protected confidence or protected
10 identity information, the court may --
11 (a) order that all or part of the evidence be heard in private;
12 and
13 (b) make any order relating to the suppression of
14 publication of all or part of the evidence given before
15 the court that, in its opinion, is necessary to protect the
16 safety and welfare of the protected confider and is in the
17 interests of justice.
18 Compare:
19 Evidence Act 1906 s. 20F
20 163. Relationship between this Division and other privileges
21 (1) This Division does not apply to a protected communication.
22 (2) However, a court may direct that evidence not be adduced under
23 this Division whether or not the evidence is privileged under
24 another section of this Part or would be privileged except for a
25 limitation or restriction imposed by that section.
26 Compare:
27 Evidence Act 1906 s. 20B(3) and (6)
page 123
Evidence Bill 2024
Part 4 Privileges
Division 3 Counselling communications relating to sexual offences
s. 164
1 Division 3 -- Counselling communications relating to sexual
2 offences
3 164. Terms used
4 (1) In this Division --
5 counselling communication has the meaning given in
6 section 165(2);
7 counsels has the meaning given in section 165(4);
8 discloses, in relation to a protected communication, has the
9 meaning given in section 166(2);
10 protected person, in relation to a protected communication,
11 means --
12 (a) the sexual offence complainant; or
13 (b) any person who made the protected communication; or
14 (c) an interpreter through whom the protected
15 communication was made;
16 require disclosure, of a protected communication, has the
17 meaning given in section 166(3);
18 support person, for a complainant, means a parent, carer or
19 other supportive person who is present when a person counsels
20 the complainant to facilitate communication between the
21 complainant and the counsellor or to further the counselling
22 process in some other way.
23 (2) In this Division, a reference to a document recording a protected
24 communication includes a reference to a document recording
25 any report, observation, opinion, advice, recommendation or
26 other matter that relates to a protected communication made by
27 a protected person.
28 Compare:
29 Evidence Act 1906 s. 19A and 19B
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Evidence Bill 2024
Privileges Part 4
Counselling communications relating to sexual offences Division 3
s. 165
1 165. Counselling communications that are protected
2 communications
3 (1) A counselling communication that is made by, to or about a
4 sexual offence complainant is a protected communication.
5 (2) Each of the following is a counselling communication --
6 (a) a communication made in confidence by a sexual
7 offence complainant to another person (the counsellor)
8 who is counselling the complainant in relation to any
9 harm the complainant may have suffered;
10 (b) a communication made in confidence to or about the
11 sexual offence complainant by the counsellor in the
12 course of the counselling process;
13 (c) a communication made in confidence about the sexual
14 offence complainant by a support person in the course of
15 the counselling process;
16 (d) a communication made in confidence by or to the
17 counsellor to or by another person who is counselling, or
18 has at any time counselled, the sexual offence
19 complainant.
20 (3) For the purposes of subsection (2), a communication can be
21 regarded as being made in confidence even if it is made in the
22 presence or with the assistance of a support person or an
23 interpreter.
24 (4) A person counsels another person if --
25 (a) the person has undertaken training or study or has
26 experience that is relevant to the process of counselling
27 persons who have suffered harm; and
28 (b) the person does any of the following, whether or not for
29 fee or reward --
30 (i) listens to and gives verbal or other support or
31 encouragement to the other person;
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Evidence Bill 2024
Part 4 Privileges
Division 3 Counselling communications relating to sexual offences
s. 166
1 (ii) advises, gives therapy to or treats the other
2 person.
3 (5) This section extends to counselling communication --
4 (a) whether it was made before or after the commission, or
5 alleged commission, of a sexual offence; and
6 (b) whether or not it was made in connection with a sexual
7 offence or an alleged sexual offence or any condition
8 arising from a sexual offence or alleged sexual offence;
9 and
10 (c) whether it was made before, on or after the day on
11 which this section comes into operation.
12 (6) This section extends to a communication made through an
13 interpreter.
14 Compare:
15 Evidence Act 1906 s. 19A
16 166. Protected communications not to be disclosed
17 (1) A person cannot disclose or require disclosure of a protected
18 communication in or in connection with any criminal
19 proceeding unless the court gives leave.
20 (2) A person discloses a protected communication if the person
21 discloses, or adduces or produces anything that would
22 disclose --
23 (a) the protected communication; or
24 (b) the contents of a document recording the protected
25 communication.
26 (3) To require disclosure of a protected communication includes
27 the following --
28 (a) to require (whether by the issue of a subpoena or any
29 other process or procedure) the production of a
30 document recording the protected communication;
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Evidence Bill 2024
Privileges Part 4
Counselling communications relating to sexual offences Division 3
s. 167
1 (b) to seek an order of the court that will, if made, result in
2 the disclosure of the protected communication or the
3 production of a document recording the protected
4 communication.
5 (4) If a subpoena that purports to require disclosure of a protected
6 communication is issued without the leave of the court, the
7 subpoena is of no effect.
8 (5) Evidence that cannot be disclosed or required to be disclosed
9 under this section without the leave of the court is not
10 admissible in a criminal proceeding unless that leave is given.
11 Compare:
12 Evidence Act 1906 s. 19A, 19C and 19K
13 167. Application for leave
14 (1) An application for leave of the court to disclose or require
15 disclosure of a protected communication --
16 (a) must be made to the court in writing; and
17 (b) must be accompanied by an affidavit (a supporting
18 affidavit).
19 (2) The application must be made to the court at least 28 days
20 before the date set for the start of a trial in the proceeding,
21 unless the applicant satisfies the court that exceptional
22 circumstances justify the application being made at a later date.
23 (3) The supporting affidavit must state why the applicant has a
24 legitimate forensic purpose for disclosing or requiring
25 disclosure of the protected communication.
26 (4) If an application is duly made and the court considers that the
27 supporting affidavit establishes that, in the absence of evidence
28 to the contrary, the applicant has a legitimate forensic purpose
29 for disclosing or requiring disclosure of the protected
30 communication, the court must fix a day and time for hearing
31 the application.
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Evidence Bill 2024
Part 4 Privileges
Division 3 Counselling communications relating to sexual offences
s. 168
1 (5) The court must hear the application before the start of the trial
2 in the proceeding, if practicable.
3 (6) The court must give notice of when the application will be
4 heard, together with copies of the application and the supporting
5 affidavit, to the following --
6 (a) the applicant and each other party to the criminal
7 proceeding;
8 (b) each protected person identified in the application or the
9 supporting affidavit;
10 (c) any other person identified in the application or the
11 supporting affidavit as a person to whom the protected
12 communication was made.
13 (7) The notice must also inform each protected person, or person to
14 whom the protected communication was made, who is identified
15 in the application or supporting affidavit, of the person's right to
16 appear, or be represented by legal counsel, at the hearing.
17 (8) If the court does not consider that the supporting affidavit
18 establishes that, in the absence of evidence to the contrary, the
19 applicant has a legitimate forensic purpose for disclosing or
20 requiring disclosure of the protected communication, the court
21 must --
22 (a) refuse leave to disclose or require disclosure of the
23 protected communication, without proceeding to a
24 hearing of the application; and
25 (b) notify the applicant that leave has been refused.
26 Compare:
27 Evidence Act 1906 s. 19C
28 168. Hearing of application
29 (1) A hearing of an application for leave to disclose or require the
30 disclosure of a protected communication must be held in the
31 absence of the jury (if any).
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Evidence Bill 2024
Privileges Part 4
Counselling communications relating to sexual offences Division 3
s. 169
1 (2) The following persons are entitled to appear, or be represented
2 by legal counsel, at the hearing --
3 (a) each protected person identified in the application or the
4 supporting affidavit;
5 (b) any other person identified in the application or the
6 supporting affidavit as a person to whom the protected
7 communication was made.
8 (3) The court may, if it thinks it necessary to enable it to determine
9 the application, conduct a preliminary examination of the
10 evidence that is the subject of the application.
11 (4) For the purpose of a preliminary examination, the court may
12 require a protected person --
13 (a) to provide written answers to questions; or
14 (b) to appear for oral examination.
15 (5) A preliminary examination must be conducted in the absence of
16 the parties.
17 Compare:
18 Evidence Act 1906 s. 19D and 19F
19 169. Test to be applied by court
20 A court may, after hearing an application for leave, give leave to
21 disclose or require disclosure of a protected communication if
22 and only if it is satisfied that --
23 (a) the applicant has a legitimate forensic purpose for
24 disclosing or requiring disclosure of the protected
25 communication; and
26 (b) other evidence to the same effect as the protected
27 communication or the document recording the protected
28 communication is not available; and
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Evidence Bill 2024
Part 4 Privileges
Division 3 Counselling communications relating to sexual offences
s. 170
1 (c) it is in the public interest to give leave to disclose or
2 require disclosure of the protected communication.
3 Compare:
4 Evidence Act 1906 s. 19E(1) and 19G(1)
5 170. Establishing legitimate forensic purpose
6 (1) In order to establish a legitimate forensic purpose for disclosing
7 or requiring the disclosure of a protected communication, it is
8 not sufficient for an applicant for leave to assert, without
9 proving, 1 or more of the following --
10 (a) that the protected communication discloses a prior
11 inconsistent statement of the sexual offence
12 complainant;
13 (b) that the protected communication relates to the
14 credibility of the sexual offence complainant or another
15 witness in the criminal proceeding;
16 (c) that the protected communication relates to the
17 reliability of the testimony of the sexual offence
18 complainant merely because the complainant has
19 received or is receiving counselling.
20 (2) It is also not sufficient for the applicant to prove 1 or more of
21 the following --
22 (a) that the protected communication exists;
23 (b) that the protected communication relates to activity that
24 is the subject of the criminal proceeding;
25 (c) that the protected communication was made close in
26 time to the activity that is the subject of the criminal
27 proceeding;
28 (d) that the protected communication reveals allegations of
29 the commission of a sexual offence against the sexual
30 offence complainant by a person other than the
31 applicant.
page 130
Evidence Bill 2024
Privileges Part 4
Counselling communications relating to sexual offences Division 3
s. 171
1 (3) Subsections (1) and (2) do not limit --
2 (a) the matters that the court can consider in deciding
3 whether the applicant has a legitimate forensic purpose
4 for disclosing or requiring disclosure of a protected
5 communication; or
6 (b) the grounds on which the court can decide that the
7 applicant does not have a legitimate forensic purpose for
8 disclosing or requiring disclosure of a protected
9 communication.
10 Compare:
11 Evidence Act 1906 s. 19E(2) and (3)
12 171. Public interest test
13 For the purpose of determining whether it is in the public
14 interest to give leave to disclose or require disclosure of a
15 protected communication, the court must have regard to the
16 following --
17 (a) the extent to which disclosing or requiring the disclosure
18 of the protected communication is necessary to allow the
19 applicant for leave to make a full defence;
20 (b) whether the evidence of the protected communication or
21 the contents of the document recording the protected
22 communication will have significant probative value;
23 (c) the likelihood that disclosing or requiring the disclosure
24 of the protected communication will affect the outcome
25 of the proceeding;
26 (d) the public interest in ensuring that sexual offence
27 complainants receive effective counselling, and the
28 extent to which failure to preserve the confidentiality of
29 protected communications may dissuade complainants
30 from seeking counselling or diminish the effectiveness
31 of counselling;
32 (e) the public interest in ensuring that adequate records are
33 kept of counselling communications;
page 131
Evidence Bill 2024
Part 4 Privileges
Division 3 Counselling communications relating to sexual offences
s. 172
1 (f) the likelihood that disclosing or requiring the disclosure
2 of the protected communication will cause harm to the
3 sexual offence complainant, and the nature and extent of
4 that harm;
5 (g) any other matter that the court considers relevant.
6 Compare:
7 Evidence Act 1906 s. 19G(2)
8 172. Effect of consent
9 (1) This Division does not prevent a protected communication from
10 being disclosed or being required to be disclosed in, or in
11 connection with, any criminal proceeding if the sexual offence
12 complainant by, to or about whom the protected communication
13 is made has consented to the disclosure.
14 (2) Consent is not effective for the purposes of this section
15 unless --
16 (a) it is given in writing; and
17 (b) it is given expressly for the purposes of this Division.
18 (3) This section does not apply if the complainant is a child.
19 Compare:
20 Evidence Act 1906 s. 19H
21 173. Loss of privilege: misconduct
22 (1) This Division does not prevent the production or adducing of
23 evidence of a communication made, or the production of a
24 document prepared, in the furtherance of the commission of a
25 fraud or an offence or the commission of an act that renders a
26 person liable to a civil penalty.
27 (2) If the commission of the fraud, offence or act is a fact in issue,
28 the court may find that the communication was made, or the
29 document was prepared, in furtherance of the commission of the
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Evidence Bill 2024
Privileges Part 4
Counselling communications relating to sexual offences Division 3
s. 174
1 fraud, offence or act if there are reasonable grounds for finding
2 that --
3 (a) the fraud, offence or act was committed; and
4 (b) the communication was made or the document was
5 prepared in furtherance of the commission of the fraud,
6 offence or act.
7 Compare:
8 Evidence Act 1906 s. 19I
9 174. Ancillary orders
10 Without limiting any action that the court may take to limit the
11 possible harm, or extent of the harm, likely to be caused by the
12 disclosure of evidence of, or the contents of a document
13 recording, a protected communication, the court may --
14 (a) order that all or part of the evidence be heard or
15 document produced in private; and
16 (b) make any order relating to the production, inspection,
17 copying or reproduction of the document that, in its
18 opinion, is necessary to protect the safety and welfare of
19 any protected person and is in the interests of justice;
20 and
21 (c) make any order relating to the suppression of
22 publication of all or part of the evidence given before
23 the court that, in its opinion, is necessary to protect the
24 safety and welfare of any protected person and is in the
25 interests of justice; and
26 (d) make any order relating to disclosure of information that
27 would tend to identify any protected person that, in its
28 opinion, is necessary to protect the safety and welfare of
29 any protected person and is in the interests of justice.
30 Compare:
31 Evidence Act 1906 s. 19J
page 133
Evidence Bill 2024
Part 4 Privileges
Division 3 Counselling communications relating to sexual offences
s. 175
1 175. Application of other laws
2 (1) A provision of this Division does not affect the operation of any
3 rule of law in relation to evidence in a criminal proceeding
4 except to the extent that it expressly or necessarily has that
5 effect.
6 (2) Without limiting subsection (1), this Division does not affect the
7 operation of a rule of law so far as it relates to the inspection of
8 a document required to be produced in, or in connection with, a
9 criminal proceeding.
10 (3) This Division does not affect the operation of the Children and
11 Community Services Act 2004 sections 124F and 240.
12 Compare:
13 Evidence Act 1906 s. 19L
14 176. Application to civil proceedings
15 If evidence of a protected communication is found to be
16 privileged in a criminal proceeding under this Division, the
17 evidence must not be adduced in a civil proceeding in which
18 substantially the same acts are in issue as the acts that were in
19 issue in relation to the criminal proceeding.
20 Compare:
21 Evidence Act 1995 (New South Wales) s. 126H
22 177. Regulations
23 The regulations may make provision for the following --
24 (a) the forms to be used for an application for leave to
25 disclose or require disclosure of a protected
26 communication and supporting affidavit;
27 (b) the manner in which a protected communication must be
28 described in an application for leave or supporting
29 affidavit;
30 (c) other matters to be included in an application for leave
31 or supporting affidavit;
page 134
Evidence Bill 2024
Privileges Part 4
Journalist privilege Division 4
s. 178
1 (d) the procedure relating to an application for leave.
2 Compare:
3 Evidence Act 1906 s. 19M
4 Division 4 -- Journalist privilege
5 178. Application of Division
6 (1) This Division extends to a proceeding before a person acting
7 judicially, other than a proceeding before a member of a House
8 of Parliament or a Committee of a House, or both Houses, of
9 Parliament who, by law, has authority to hear, receive and
10 examine evidence.
11 (2) This Division does not affect any power a person acting
12 judicially has under any written law to take any action if it is in
13 the interests of justice to do so.
14 Note for this section:
15 Section 15 provides that if a provision of this Act expressly extends to
16 a proceeding before a person acting judicially, a reference in the
17 provision to a court includes a person acting judicially.
18 Compare:
19 Evidence Act 1906 s. 20G and 20H
20 179. Terms used
21 In this Division --
22 exclusion order has the meaning given in section 181(1);
23 informant means a person who gives information to a journalist
24 in the normal course of the journalist's work in the expectation
25 that the information may be published in a news medium;
26 journalist means a person engaged in the profession or
27 occupation of journalism in connection with the publication of
28 information in a news medium;
29 journalist privilege means the privilege conferred by
30 section 180(1);
page 135
Evidence Bill 2024
Part 4 Privileges
Division 4 Journalist privilege
s. 179
1 misconduct, by a journalist or an informant, means any of the
2 following conduct by the journalist or informant --
3 (a) the commission of an offence;
4 (b) an act or omission that renders the journalist or
5 informant liable to a civil penalty;
6 (c) deceit, dishonesty, inappropriate partiality or a breach of
7 trust;
8 (d) acting corruptly, or corruptly failing to act, in any
9 capacity;
10 (e) corruptly taking advantage of their position to obtain a
11 benefit for themselves or another person or to cause a
12 detriment to another person;
13 (f) engaging in conduct that adversely affects, or could
14 adversely affect, directly or indirectly, the honest or
15 impartial performance of the functions of any person in
16 any capacity;
17 (g) misusing information or material that the journalist or
18 informant acquired in any capacity, whether the misuse
19 is to obtain a benefit for themselves or another person or
20 to cause a detriment to another person;
21 (h) conduct providing reasonable grounds for terminating
22 the employment of the journalist or informant;
23 (i) conduct providing reasonable grounds for disciplining
24 the journalist or informant for unsatisfactory
25 professional conduct or professional misconduct, or for
26 the breach of a professional standard that applies to the
27 profession of the journalist or informant, whether or not
28 the journalist or informant is a member of the body that
29 prescribed the standard;
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Evidence Bill 2024
Privileges Part 4
Journalist privilege Division 4
s. 180
1 news medium means any medium for the dissemination to the
2 public or a section of the public of news and observations on
3 news.
4 Compare:
5 Evidence Act 1906 s. 20G and 20K
6 Evidence Act 1995 (Commonwealth) s. 126J
7 180. Journalist privilege relating to identity of informant
8 (1) If a journalist has promised an informant not to disclose the
9 informant's identity, neither the journalist nor the journalist's
10 employer is compellable to answer any question or produce any
11 document that would disclose the identity of the informant or
12 enable that identity to be ascertained.
13 (2) This section does not apply if the court, on application of a
14 party, makes an exclusion order in relation to the evidence.
15 Compare:
16 Evidence Act 1995 (Commonwealth) s. 126K
17 181. Exclusion of journalist privilege: public interest test
18 (1) A court may make an order (an exclusion order) that journalist
19 privilege does not apply to any evidence.
20 (2) A court may make an exclusion order if it is satisfied that,
21 having regard to the issues to be determined in that proceeding,
22 the public interest in the disclosure of evidence of the identity of
23 the informant outweighs --
24 (a) any likely adverse effect of the disclosure on the
25 informant or any other person; and
26 (b) the public interest in the communication of facts and
27 opinion to the public by the news media and,
28 accordingly, in the ability of the news media to access
29 sources of facts.
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Evidence Bill 2024
Part 4 Privileges
Division 4 Journalist privilege
s. 182
1 (3) The court may make the exclusion order subject to any
2 conditions the court thinks fit.
3 Compare:
4 Evidence Act 1906 s. 20J
5 Evidence Act 1995 (Commonwealth) s. 126K
6 182. Special consideration: misconduct
7 (1) The court may make, but is not required to make, an exclusion
8 order if the court finds that there was misconduct by an
9 informant or a journalist in relation to obtaining, using, giving
10 or receiving information.
11 (2) The court must have regard to the following when deciding
12 whether or not to make an exclusion order in a case involving
13 misconduct --
14 (a) that generally an exclusion order should be made in the
15 circumstances referred to in subsection (3);
16 (b) the public interest in making or refusing to make the
17 order.
18 (3) The following are the circumstances in which generally an
19 exclusion order should be made --
20 (a) the misconduct involved the commission of an offence
21 under The Criminal Code section 81 or a breach of a
22 public sector standard, code of ethics or code of
23 conduct, as those terms are defined in the Public Sector
24 Management Act 1994 section 3(1), and the offence or
25 breach involved the disclosure of information that --
26 (i) was public interest information as defined in the
27 Public Interest Disclosure Act 2003 section 3(1);
28 and
29 (ii) could have been, but was not, disclosed in
30 accordance with the Public Interest Disclosure
31 Act 2003;
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Evidence Bill 2024
Privileges Part 4
Journalist privilege Division 4
s. 182
1 (b) the information given to the journalist could have been
2 provided, in a way that did not constitute misconduct, to
3 another person to deal with the concern;
4 (c) the information given to the journalist could have been
5 obtained by the journalist under the Freedom of
6 Information Act 1992 or by other lawful means;
7 (d) the misconduct involved a breach of privacy that was
8 not warranted in the circumstances, having regard to the
9 value to be attached to --
10 (i) the privacy of information regarding private
11 citizens generally; or
12 (ii) the privacy of information regarding matters that
13 may be commercial in confidence; or
14 (iii) the principle of Cabinet confidentiality; or
15 (iv) the principle of public interest immunity;
16 (e) the communication made to the journalist, if published,
17 would give rise to a risk to national security or to the
18 security of the State.
19 (4) If misconduct by a journalist or an informant is a fact in issue,
20 the court may find that there was misconduct by the journalist or
21 informant in relation to obtaining, using, giving or receiving
22 information if there are reasonable grounds for making that
23 finding.
24 (5) This section does not limit --
25 (a) the circumstances in which the court may make an
26 exclusion order; or
27 (b) the matters to which the court may have regard in
28 deciding whether to make an exclusion order.
29 Compare:
30 Evidence Act 1906 s. 20K
page 139
Evidence Bill 2024
Part 4 Privileges
Division 4 Journalist privilege
s. 183
1 183. Application of journalist privilege to preliminary
2 proceedings
3 (1) In this section --
4 disclosure requirement --
5 (a) means a court process or court order that requires the
6 disclosure of information or a document; and
7 (b) includes the following --
8 (i) a summons or subpoena to produce documents or
9 give evidence;
10 (ii) pre-trial discovery;
11 (iii) non-party discovery;
12 (iv) interrogatories;
13 (v) a notice to produce;
14 (vi) a request to produce a document under Part 8
15 Division 4.
16 (2) If, in response to a disclosure requirement, a person claims that
17 the person is not compellable to answer a question or produce a
18 document because of journalist privilege, a party who seeks
19 disclosure of information or a document under the disclosure
20 requirement may apply to the court for an exclusion order.
21 Compare:
22 Evidence Act 1995 (Commonwealth) s. 131A
23 184. Ancillary orders
24 Without limiting any action that the court may take to limit the
25 possible harm, or extent of the harm, likely to be caused by the
26 disclosure of evidence identifying an informant, the court
27 may --
28 (a) order that all or part of the evidence be heard in private;
29 and
page 140
Evidence Bill 2024
Privileges Part 4
Self-incrimination Division 5
s. 185
1 (b) make any order relating to the suppression of
2 publication of all or part of the evidence given before
3 the court that, in its opinion, is necessary to protect the
4 safety and welfare of the informant and is in the interests
5 of justice.
6 Compare:
7 Evidence Act 1906 s. 20M
8 Division 5 -- Self-incrimination
9 185. Terms used
10 In this Division --
11 disclosure certificate has the meaning given in section 188(7);
12 disclosure order --
13 (a) means an order made by a WA court in a civil
14 proceeding that requires a person to disclose information
15 as part of, or in connection with, a freezing or search
16 order made under the rules of the Supreme Court; but
17 (b) does not include an order made by a court under the
18 Criminal Property Confiscation Act 2000 or the
19 Proceeds of Crime Act 2002 (Commonwealth);
20 evidence certificate has the meaning given in section 186(7);
21 incriminate, a person, means tend to prove that the person --
22 (a) has committed an offence against or arising under an
23 Australian law or a law of a foreign country; or
24 (b) is liable to a civil penalty.
page 141
Evidence Bill 2024
Part 4 Privileges
Division 5 Self-incrimination
s. 186
1 186. Privilege in respect of self-incrimination in other
2 proceedings
3 (1) A witness may object to giving particular evidence, or evidence
4 on a particular matter, on the ground that the evidence may
5 incriminate the witness.
6 (2) A witness is taken to have objected to giving evidence under
7 this section if the witness expresses an unwillingness to give
8 evidence on the ground that the evidence might incriminate the
9 witness.
10 (3) A witness may object to giving evidence under this section
11 whether or not the witness is compellable to give that evidence.
12 (4) The court must determine whether or not there are reasonable
13 grounds for the objection.
14 (5) If the court determines that there are reasonable grounds for the
15 objection, the court --
16 (a) must not require the witness to give the evidence, except
17 under subsection (6); and
18 (b) must inform the witness --
19 (i) that the witness is not required to give the
20 evidence unless the court requires it under
21 subsection (6); and
22 (ii) that the court will give the witness an evidence
23 certificate if the witness gives the evidence
24 (either with or without being required to do so);
25 and
26 (iii) of the effect of the evidence certificate.
27 (6) The court may require the witness to give the evidence if the
28 court is satisfied that --
29 (a) the evidence does not tend to prove that the witness has
30 committed an offence against or arising under, or is
31 liable to a civil penalty under, a law of a foreign
32 country; and
page 142
Evidence Bill 2024
Privileges Part 4
Self-incrimination Division 5
s. 187
1 (b) the interests of justice require that the witness give the
2 evidence.
3 (7) The court must cause a witness who objects to giving evidence
4 under this section to be given a certificate (an evidence
5 certificate) in respect of evidence if --
6 (a) the court determines that there are reasonable grounds
7 for the objection and the witness gives the evidence
8 (whether or not after being required to do so under
9 subsection (6)); or
10 (b) the court overrules the objection but, after the evidence
11 has been given, finds that there were reasonable grounds
12 for the objection.
13 (8) In a criminal proceeding, this section does not apply in relation
14 to the giving of evidence by an accused, being evidence that the
15 accused --
16 (a) did an act the doing of which is a fact in issue; or
17 (b) had a state of mind the existence of which is a fact in
18 issue.
19 Compare:
20 Evidence Act 1995 (Commonwealth) s. 128
21 187. Effect of evidence certificate
22 (1) In any proceeding in a WA court or before a person acting
23 judicially (whether or not a court), the following evidence
24 cannot be used against a person --
25 (a) evidence given by the person in respect of which an
26 evidence certificate has been given;
27 (b) evidence of any information, document or thing
28 obtained as a direct or indirect consequence of the
29 person having given evidence in respect of which an
30 evidence certificate has been given.
page 143
Evidence Bill 2024
Part 4 Privileges
Division 5 Self-incrimination
s. 188
1 (2) Subsection (1) --
2 (a) does not apply to a criminal proceeding in respect of the
3 falsity of the evidence; and
4 (b) has effect despite any challenge, review, quashing or
5 calling into question on any ground of the decision to
6 give, or the validity of, the certificate concerned.
7 (3) If an accused in a criminal proceeding is given an evidence
8 certificate, subsection (1) does not apply in a proceeding that is
9 a retrial of the accused for the same offence or a trial of the
10 accused for an offence arising out of the same facts that gave
11 rise to that offence.
12 (4) If a person has been given a certificate under a corresponding
13 provision in respect of evidence given in a proceeding to which
14 the corresponding provision applies, the certificate has the same
15 effect as an evidence certificate given under this section.
16 (5) Each of the following is a corresponding provision for the
17 purposes of subsection (4) --
18 (a) a provision of a law of a State or Territory that is
19 substantially to the same effect as section 186;
20 (b) a provision of a law of a State or Territory prescribed by
21 the regulations to be a corresponding provision for the
22 purposes of subsection (4).
23 Note for this section:
24 Subsections (2)(b) and (3) relate to the decision of the High Court of
25 Australia in Cornwell v The Queen (2007) 231 CLR 260.
26 Compare:
27 Evidence Act 1995 (Commonwealth) s. 128
28 188. Privilege in respect of self-incrimination: disclosure orders
29 (1) A person to whom a disclosure order is directed (a relevant
30 person) may object to complying with the disclosure order on
31 the ground that some or all of the information required to be
32 disclosed may incriminate the person.
page 144
Evidence Bill 2024
Privileges Part 4
Self-incrimination Division 5
s. 188
1 (2) A relevant person who wishes to object to the disclosure of
2 information under this section must --
3 (a) disclose any information required to be disclosed to
4 which no objection is made; and
5 (b) prepare an affidavit (a privilege affidavit) containing the
6 information required to be disclosed to which the
7 objection is made and deliver it to the court in a sealed
8 envelope; and
9 (c) file and serve on each other party a separate affidavit
10 setting out the basis of the objection.
11 (3) The sealed envelope containing the privilege affidavit must not
12 be opened except as directed by the court.
13 (4) The court must determine whether or not there are reasonable
14 grounds for the objection.
15 (5) If the court finds that there are reasonable grounds for the
16 objection, the court must not require the information contained
17 in the privilege affidavit to be disclosed and must return it to the
18 relevant person.
19 (6) Despite subsection (5), the court may make an order requiring
20 the whole or any part of the privilege affidavit to be filed and
21 served on the parties, but only if the court is satisfied that --
22 (a) the information to be disclosed does not tend to prove
23 that the relevant person has committed an offence
24 against or arising under, or is liable to a civil penalty
25 under, a law of a foreign country; and
26 (b) the interests of justice require the information to be
27 disclosed.
28 (7) The court must cause the relevant person to be given a
29 certificate (a disclosure certificate) in respect of any
30 information disclosed in the privilege affidavit (including by
31 order under subsection (6)) that may tend to prove that the
page 145
Evidence Bill 2024
Part 4 Privileges
Division 5 Self-incrimination
s. 189
1 relevant person has committed an offence against or arising
2 under, or is liable to a civil penalty under, an Australian law.
3 Compare:
4 Evidence Act 1995 (Commonwealth) s. 128A
5 189. Effect of disclosure certificate
6 (1) In any proceeding in a WA court or before a person acting
7 judicially (whether or not a court), the following evidence
8 cannot be used against a person --
9 (a) evidence of information disclosed by the person in
10 respect of which a disclosure certificate has been given;
11 (b) evidence of any information, document or thing
12 obtained as a direct or indirect consequence of the
13 person having disclosed that information.
14 (2) Subsection (1) --
15 (a) does not apply to a criminal proceeding in respect of the
16 falsity of the evidence; and
17 (b) has effect despite any challenge, review, quashing or
18 calling into question on any ground of the decision to
19 give, or the validity of, the certificate concerned.
20 (3) Subsection (1) does not prevent the use against the person of
21 any information disclosed by a document that --
22 (a) is an annexure or exhibit to a privilege affidavit
23 prepared by the person in response to a disclosure order;
24 and
25 (b) was in existence before the order was made.
26 (4) If a person has been given a certificate under a corresponding
27 provision in respect of information of a kind referred to in
28 subsection (1), the certificate has the same effect as a disclosure
29 certificate given under this section.
page 146
Evidence Bill 2024
Privileges Part 4
Self-incrimination Division 5
s. 190
1 (5) Each of the following is a corresponding provision for the
2 purposes of subsection (4) --
3 (a) a provision of a law of a State or Territory that is
4 substantially to the same effect as section 188;
5 (b) a provision of a law of a State or Territory prescribed by
6 the regulations to be a corresponding provision for the
7 purposes of subsection (4).
8 Compare:
9 Evidence Act 1995 (Commonwealth) s. 128A
10 190. Court may restrict publication of evidence
11 (1) A court that causes a person to be given an evidence certificate
12 or a disclosure certificate in respect of any evidence may make
13 an order prohibiting the publication of a report of or relating to
14 the evidence, or any part of the evidence, or of the giving of the
15 certificate, if the court considers that publication of the
16 evidence, or of the giving of the certificate, may tend to
17 prejudice any prosecution that has been or may be brought
18 against the person.
19 (2) A person must not publish information in contravention of an
20 order under subsection (1).
21 Penalty for this subsection: a fine of $6 000.
22 (3) A person who contravenes subsection (1) --
23 (a) is taken to be in contempt of the court that gave the
24 evidence certificate or disclosure certificate; and
25 (b) is punishable accordingly.
26 (4) A contempt of court referred to in subsection (3) is punishable
27 by a fine not exceeding $6 000.
page 147
Evidence Bill 2024
Part 4 Privileges
Division 5 Self-incrimination
s. 191
1 (5) If a person's act constitutes both an offence under subsection (2)
2 and a contempt of court under subsection (3), the person cannot
3 be punished for both.
4 Compare:
5 Evidence Act 1906 s. 11A
6 191. Self-incrimination: witnesses in public revenue proceedings
7 (1) A person who is required by a court under section 29 to give
8 evidence in a proceeding to which that section applies may
9 object to giving evidence, or evidence on a particular matter, on
10 the ground that the evidence may incriminate the person.
11 (2) If the court determines there are no reasonable grounds for the
12 objection, the court may require the person to give the evidence.
13 (3) If the court determines there are reasonable grounds for the
14 objection, the court may require the person to give the evidence
15 if the court is satisfied that --
16 (a) the evidence does not tend to prove that the person has
17 committed an offence against or arising under, or is
18 liable to a civil penalty under, a law of the
19 Commonwealth, another State, a Territory or a foreign
20 country; and
21 (b) it is in the public interest that the person give the
22 evidence.
23 (4) The court must, on application, cause the person to be given a
24 certificate (an immunity certificate) in respect of any matter in
25 relation to which the person gives evidence after being required
26 to do so by the court if, in the opinion of the court, the evidence
27 the person was required to give incriminates the person.
28 (5) If an immunity certificate is given to the person --
29 (a) the person is not liable for any offence against or arising
30 under, or a civil penalty under, a law of this State in
31 respect of a matter specified in the immunity certificate;
32 and
page 148
Evidence Bill 2024
Privileges Part 4
Evidence excluded in the public interest Division 6
s. 192
1 (b) a prosecution for an offence against or arising under, or
2 a proceeding for a civil penalty under, a law of this State
3 cannot be instituted or continued against the person for a
4 matter specified in the immunity certificate.
5 (6) An immunity certificate does not extend --
6 (a) to an act or omission that occurs after the evidence is
7 given in the proceeding in which the immunity
8 certificate is given; or
9 (b) to a criminal proceeding in respect of the falsity of
10 evidence given in the proceeding in which the immunity
11 certificate is given.
12 (7) Sections 186 and 187 do not apply to a person who is required
13 by a court to give evidence under section 29.
14 Compare:
15 Evidence Act 1906 s. 13
16 Division 6 -- Evidence excluded in the public interest
17 192. Exclusion of evidence of reasons for judicial and other
18 decisions
19 (1) A judge in an Australian or overseas proceeding, or an arbitrator
20 in respect of a dispute submitted to arbitration (whether to 1 or
21 more arbitrators), and any other person to whom this subsection
22 extends, must not give evidence of the following --
23 (a) the reasons for the decision made by the judge or
24 arbitrator in the proceeding or arbitration;
25 (b) the deliberations of the judge or arbitrator in relation to
26 that decision.
27 (2) Subsection (1) extends to a person who was, in relation to a
28 proceeding or arbitration, under the direction or control of the
29 judge or arbitrator.
page 149
Evidence Bill 2024
Part 4 Privileges
Division 6 Evidence excluded in the public interest
s. 192
1 (3) Evidence that a person must not give under subsection (1) or (2)
2 also must not be given by tendering as evidence any document
3 prepared by the person.
4 (4) This section does not prevent the admission or use, in a
5 proceeding, of published reasons for a decision.
6 (5) In a proceeding, evidence of the reasons for a decision made by
7 a member of a jury in another Australian or overseas
8 proceeding, or of the deliberations of a member of a jury in
9 relation to the decision, must not be given by any of the
10 members of that jury.
11 (6) This section does not apply in a proceeding that is --
12 (a) a prosecution for 1 or more of the following offences --
13 (i) an offence against The Criminal Code
14 Chapter XVI or XVII;
15 (ii) an offence connected with an offence mentioned
16 in subparagraph (i), including an offence of
17 attempting to commit, conspiring with another
18 person to commit, inciting another person to
19 commit or attempting to procure another person
20 to commit an offence mentioned in
21 subparagraph (i);
22 or
23 (b) in respect of a contempt of court; or
24 (c) by way of appeal from, or judicial review of, a
25 judgment, decree, order or sentence of a court; or
26 (d) by way of review of an arbitral award; or
27 (e) a civil proceeding in respect of an act of a judicial
28 officer or arbitrator that was, and that was known at the
29 time by the judicial officer or arbitrator to be, outside
page 150
Evidence Bill 2024
Privileges Part 4
Evidence excluded in the public interest Division 6
s. 193
1 the scope of the matters in relation to which the judicial
2 officer or arbitrator had authority to act.
3 Compare:
4 Evidence Act 1995 (Commonwealth) s. 129
5 193. Exclusion of evidence of matters of state
6 (1) If the public interest in admitting into evidence information or a
7 document that relates to matters of state is outweighed by the
8 public interest in preserving secrecy or confidentiality in
9 relation to the information or document, the court may direct
10 that the information or document not be adduced as evidence.
11 (2) The court may give the direction either on its own initiative or
12 on the application of any person (whether or not the person is a
13 party).
14 (3) In deciding whether to give the direction, the court may inform
15 itself in any way it thinks fit.
16 (4) Without limiting the circumstances in which information or a
17 document may be taken for the purposes of subsection (1) to
18 relate to matters of state, the information or document is taken
19 for the purposes of that subsection to relate to matters of state if
20 adducing it as evidence would --
21 (a) prejudice the security, defence or international relations
22 of Australia; or
23 (b) damage relations between the Commonwealth and a
24 State or a Territory or between States, Territories or a
25 State and Territory; or
26 (c) prejudice the prevention, investigation or prosecution of
27 an offence; or
28 (d) prejudice the prevention or investigation of, or the
29 conduct of proceedings for recovery of civil penalties
30 brought with respect to, other contraventions of the law;
31 or
page 151
Evidence Bill 2024
Part 4 Privileges
Division 6 Evidence excluded in the public interest
s. 193
1 (e) disclose, or enable a person to ascertain, the existence or
2 identity of a confidential source of information relating
3 to the enforcement or administration of a law of the
4 Commonwealth, a State or a Territory; or
5 (f) prejudice the proper functioning of the government of
6 the Commonwealth, a State or a Territory.
7 (5) Without limiting the matters that the court may take into
8 account for the purposes of subsection (1), the court must take
9 into account the following matters --
10 (a) the importance of the information or the document in the
11 proceeding;
12 (b) if the proceeding is a criminal proceeding -- whether
13 the party seeking to adduce evidence of the information
14 or document is an accused or the prosecutor;
15 (c) the nature of the offence, cause of action or defence to
16 which the information or document relates, and the
17 nature of the subject matter of the proceeding;
18 (d) the likely effect of adducing evidence of the information
19 or document, and the means available to limit its
20 publication;
21 (e) whether the substance of the information or document
22 has already been published;
23 (f) if the proceeding is a criminal proceeding and the party
24 seeking to adduce evidence of the information or
25 document is an accused -- whether the direction is to be
26 made subject to the condition that the prosecution be
27 stayed.
28 Compare:
29 Evidence Act 1995 (Commonwealth) s. 130
page 152
Evidence Bill 2024
Privileges Part 4
Evidence excluded in the public interest Division 6
s. 194
1 194. Exclusion of evidence of settlement negotiations
2 (1) In this section --
3 dispute means a dispute of a kind in respect of which relief may
4 be given in an Australian or overseas proceeding;
5 power means a power conferred by or under an Australian law.
6 (2) Evidence must not be adduced of --
7 (a) a communication that is made between persons in
8 dispute, or between 1 or more persons in dispute and a
9 third party, in connection with an attempt to negotiate a
10 settlement of the dispute; or
11 (b) a document (whether delivered or not) that has been
12 prepared in connection with an attempt to negotiate a
13 settlement of a dispute.
14 (3) Subsection (2) does not apply in the following circumstances --
15 (a) the persons in dispute consent to the evidence being
16 adduced in the proceeding concerned or, if any of those
17 persons has tendered the communication or document in
18 evidence in another Australian or overseas proceeding,
19 all the other persons consent;
20 (b) the substance of the evidence has been disclosed with
21 the express or implied consent of all the persons in
22 dispute;
23 (c) the substance of the evidence has been partly disclosed
24 with the express or implied consent of the persons in
25 dispute, and full disclosure of the evidence is reasonably
26 necessary to enable a proper understanding of the other
27 evidence that has already been adduced;
28 (d) the communication or document included a statement to
29 the effect that it was not to be treated as confidential;
30 (e) the evidence tends to contradict or to qualify evidence
31 that has already been admitted about the course of an
32 attempt to settle the dispute;
page 153
Evidence Bill 2024
Part 4 Privileges
Division 6 Evidence excluded in the public interest
s. 194
1 (f) the proceeding in which it is sought to adduce the
2 evidence is a proceeding to enforce an agreement
3 between the persons in dispute to settle the dispute, or a
4 proceeding in which the making of the agreement is in
5 issue;
6 (g) evidence that has been adduced in the proceeding, or an
7 inference from evidence that has been adduced in the
8 proceeding, is likely to mislead the court unless
9 evidence of the communication or document is adduced
10 to contradict or to qualify that evidence;
11 (h) the communication or document is relevant to
12 determining liability for costs;
13 (i) making the communication, or preparing the document,
14 affects a right of a person;
15 (j) the communication was made, or the document was
16 prepared, in furtherance of the commission of a fraud or
17 an offence or the commission of an act that renders a
18 person liable to a civil penalty;
19 (k) a person in dispute, or an employee or agent of a person
20 in dispute, knew or ought reasonably to have known that
21 the communication was made, or the document was
22 prepared, in furtherance of a deliberate abuse of a
23 power.
24 (4) If the commission of a fraud, offence or act referred to in
25 subsection (3)(j) is a fact in issue, a court may find that a
26 communication was made or a document was prepared in
27 furtherance of the commission of a fraud, offence or act if there
28 are reasonable grounds for finding that --
29 (a) the fraud, offence or act was committed; and
30 (b) the communication was made or document was prepared
31 in furtherance of the commission of the fraud, offence or
32 act.
33 (5) If an abuse of power referred to in subsection (3)(k) is a fact in
34 issue, the court may find that a communication was made or a
page 154
Evidence Bill 2024
Privileges Part 4
General Division 7
s. 195
1 document was prepared in furtherance of an abuse of power
2 if there are reasonable grounds for that finding.
3 (6) This section does not apply to a communication made, or a
4 document prepared, in connection with an attempt to negotiate
5 the settlement of a criminal proceeding or an anticipated
6 criminal proceeding.
7 (7) For the purposes of this section --
8 (a) a communication made by an employee or agent of a
9 person is taken to have been made by the person; and
10 (b) a consent given by an employee or agent of a person is
11 taken to have been given by the person if the employee
12 or agent is authorised to consent.
13 (8) A reference in this section to the commission of an act includes
14 a failure to act.
15 Compare:
16 Evidence Act 1995 (Commonwealth) s. 131
17 Division 7 -- General
18 195. Court to inform of rights to make applications and
19 objections
20 If it appears to the court that a witness or a party may have
21 grounds for making an application or objection under a
22 provision of this Part, the court must satisfy itself (if there is a
23 jury, in the absence of the jury) that the witness or party is
24 aware of the effect of that provision.
25 Compare:
26 Evidence Act 1995 (Commonwealth) s. 132
27 196. Court may inspect documents
28 If a question arises under this Part in relation to a document, the
29 court may order that the document be produced to it and may
page 155
Evidence Bill 2024
Part 4 Privileges
Division 7 General
s. 197
1 inspect the document for the purpose of determining the
2 question.
3 Compare:
4 Evidence Act 1995 (Commonwealth) s. 133
5 197. Inadmissibility of evidence that must not be adduced or
6 given
7 Evidence that, because of this Part, must not be adduced or
8 given in a proceeding is not admissible in the proceeding.
9 Compare:
10 Evidence Act 1995 (Commonwealth) s. 134
11 198. Derogation of privilege in civil proceedings
12 (1) Rules of court relating to the use of expert evidence in a civil
13 proceeding may provide for the derogation of any privilege
14 under this Act that would otherwise attach to documents
15 prepared --
16 (a) for the purpose of pending or contemplated proceedings;
17 or
18 (b) in connection with the obtaining or giving of legal
19 advice.
20 (2) A privilege under this Act does not apply to the extent provided
21 for by rules of court referred to in subsection (1).
22 (3) Without limiting the generality of subsection (1) or any other
23 power to make rules of court, rules of court relating to the use of
24 expert evidence in a civil proceeding may make provision for --
25 (a) the disclosure, by providing copies of reports or
26 otherwise, of the nature and substance of expert
27 evidence to be given in a civil proceeding; and
28 (b) the exclusion of expert evidence because of
29 non-compliance with the rules of court relating to
30 disclosure of expert evidence or non-compliance with
page 156
Evidence Bill 2024
Privileges Part 4
General Division 7
s. 199
1 any order for the disclosure of the nature and substance
2 of expert evidence; and
3 (c) the conferral of a discretion on the court, tribunal or
4 other person or body dealing with the proceeding in
5 relation to the matters referred to in paragraphs (a)
6 and (b).
7 (4) This section extends to the following proceedings --
8 (a) an arbitration;
9 (b) a civil proceeding before a WA tribunal.
10 Compare:
11 Evidence Act 1906 s. 32A
12 199. No privilege against self-incrimination for bodies corporate
13 (1) This section applies if, under a law of the State or in a
14 proceeding to which this Act applies, a body corporate is
15 required to --
16 (a) answer a question or give information; or
17 (b) produce a document or any other thing; or
18 (c) do any other act whatever.
19 (2) The body corporate is not entitled to refuse or fail to comply
20 with the requirement on the ground that answering the question,
21 giving the information, producing the document or other thing
22 or doing that other act, as the case may be, might tend to
23 incriminate the body or make the body liable to a penalty.
24 Compare:
25 Evidence Act 1995 (Commonwealth) s. 187
26 200. No confessional privilege in proceedings relating to child
27 sexual offences or sexual abuse
28 (1) In this section --
29 religious confession means a confession made by a person to a
30 minister of religion acting in the minister's capacity as a
page 157
Evidence Bill 2024
Part 4 Privileges
Division 7 General
s. 200
1 minister of religion and in accordance with the tenets of the
2 minister's faith or religion.
3 (2) A person is not entitled to refuse or fail to give evidence on the
4 ground that giving the evidence would require the person to
5 disclose that a religious confession was made to the person, the
6 contents of a religious confession or information gained in
7 connection with a religious confession in the following
8 proceedings --
9 (a) a criminal proceeding for a sexual offence if the
10 complainant was a child at the time of the offence;
11 (b) a civil proceeding in which it is alleged a person is the
12 victim of sexual abuse if the person was a child at the
13 time of the sexual abuse.
14 (3) This section does not affect the operation of any privilege
15 conferred by this Part.
page 158
Evidence Bill 2024
Exclusion of evidence Part 5
s. 201
1 Part 5 -- Exclusion of evidence
2 201. General discretion to exclude evidence
3 A court may refuse to admit evidence if its probative value is
4 substantially outweighed by the danger that the evidence
5 might --
6 (a) be unfairly prejudicial to a party; or
7 (b) be misleading or confusing; or
8 (c) cause or result in undue waste of time.
9 Compare:
10 Evidence Act 1995 (Commonwealth) s. 135
11 202. General discretion to limit use of evidence
12 A court may limit the use to be made of evidence if there is a
13 danger that a particular use of the evidence might --
14 (a) be unfairly prejudicial to a party; or
15 (b) be misleading or confusing.
16 Compare:
17 Evidence Act 1995 (Commonwealth) s. 136
18 203. Exclusion of prejudicial evidence in criminal proceeding
19 In a criminal proceeding, the court must refuse to admit
20 evidence adduced by the prosecutor if its probative value is
21 outweighed by the danger of unfair prejudice to the accused.
22 Compare:
23 Evidence Act 1995 (Commonwealth) s. 137
24 204. Exclusion of improperly or illegally obtained evidence
25 (1) The following evidence must not be admitted unless the
26 desirability of admitting the evidence outweighs the
page 159
Evidence Bill 2024
Part 5 Exclusion of evidence
s. 204
1 undesirability of admitting evidence that has been obtained in
2 the way in which the evidence was obtained --
3 (a) evidence obtained improperly or in contravention of an
4 Australian law;
5 (b) evidence obtained in consequence of an impropriety or
6 of a contravention of an Australian law.
7 (2) Without limiting subsection (1), evidence of an admission that
8 was made during or in consequence of questioning, and
9 evidence obtained in consequence of the admission, is taken to
10 have been obtained improperly if the person conducting the
11 questioning --
12 (a) did, or omitted to do, an act in the course of the
13 questioning even though the person knew or ought
14 reasonably to have known that the act or omission was
15 likely to impair substantially the ability of the person
16 being questioned to respond rationally to the
17 questioning; or
18 (b) made a false statement in the course of the questioning
19 even though the person knew or ought reasonably to
20 have known that the statement was false and that
21 making the false statement was likely to cause the
22 person who was being questioned to make an admission.
23 (3) Without limiting the matters that the court may take into
24 account under subsection (1), it must take into account the
25 following --
26 (a) the probative value of the evidence;
27 (b) the importance of the evidence in the proceeding;
28 (c) the nature of the relevant offence, cause of action or
29 defence and the nature of the subject matter of the
30 proceeding;
31 (d) the gravity of the impropriety or contravention;
32 (e) whether the impropriety or contravention was deliberate
33 or careless;
page 160
Evidence Bill 2024
Exclusion of evidence Part 5
s. 205
1 (f) whether the impropriety or contravention was contrary
2 to or inconsistent with a right of a person recognised by
3 the International Covenant on Civil and Political Rights;
4 (g) whether any other proceeding (whether or not in a court)
5 has been or is likely to be taken in relation to the
6 impropriety or contravention;
7 (h) the difficulty (if any) of obtaining the evidence without
8 impropriety or contravention of an Australian law.
9 Compare:
10 Evidence Act 1995 (Commonwealth) s. 138
11 205. Cautioning of persons
12 (1) For the purposes of section 204(1)(a), evidence of a statement
13 made or an act done by a person during questioning is taken to
14 have been obtained improperly if --
15 (a) the person was under arrest for an offence at the time;
16 and
17 (b) the questioning was conducted by an investigating
18 official who was at the time empowered, because of the
19 office that the official held, to arrest the person; and
20 (c) before starting the questioning the investigating official
21 did not caution the person that the person does not have
22 to say or do anything but that anything the person does
23 say or do may be used in evidence.
24 (2) For the purposes of section 204(1)(a), evidence of a statement
25 made or an act done by a person during questioning is taken to
26 have been obtained improperly if --
27 (a) the questioning was conducted by an investigating
28 official who did not have the power to arrest the person;
29 and
30 (b) the statement was made, or the act was done, after the
31 investigating official formed a belief that there was
page 161
Evidence Bill 2024
Part 5 Exclusion of evidence
s. 205
1 sufficient evidence to establish that the person has
2 committed an offence; and
3 (c) the investigating official did not, before the statement
4 was made or the act was done, caution the person that
5 the person does not have to say or do anything but that
6 anything the person does say or do may be used in
7 evidence.
8 (3) The caution must be given in, or translated into, a language in
9 which the person is able to communicate with reasonable
10 fluency, but need not be given in writing unless the person
11 cannot hear adequately.
12 (4) Subsections (1), (2) and (3) do not apply so far as any
13 Australian law requires the person to answer questions put by,
14 or do things required by, the investigating official.
15 (5) A reference in subsection (1) to a person who is under arrest
16 includes a reference to a person who is in the company of an
17 investigating official for the purpose of being questioned, if --
18 (a) the official believes that there is sufficient evidence to
19 establish that the person has committed an offence that
20 is to be the subject of the questioning; or
21 (b) the official would not allow the person to leave if the
22 person wished to do so; or
23 (c) the official has given the person reasonable grounds for
24 believing that the person would not be allowed to leave
25 if the person wished to do so.
26 (6) A person is not treated as being under arrest only because of
27 subsection (5) if --
28 (a) the official is performing functions in relation to persons
29 or goods entering or leaving Australia and the official
30 does not believe the person has committed an offence
31 against a law of the Commonwealth; or
page 162
Evidence Bill 2024
Exclusion of evidence Part 5
s. 206
1 (b) the official is exercising a power under an Australian
2 law to detain and search the person or to require the
3 person to provide information or to answer questions.
4 Compare:
5 Evidence Act 1995 (Commonwealth) s. 139
6 206. Exclusion of certain evidence relating to complainant
7 (1) This section applies to a criminal proceeding for a sexual
8 offence.
9 (2) The following evidence must not be adduced by or on behalf of
10 an accused --
11 (a) evidence relating to the sexual reputation of the
12 complainant;
13 (b) evidence relating to the disposition of the complainant in
14 sexual matters.
15 (3) Evidence relating to the sexual experiences of the complainant,
16 of any kind, at any time and with any person, other than the acts
17 or omissions that constitute the offence, must not be adduced by
18 or on behalf of an accused, except with the leave of the court.
19 (4) An application for leave of the court must be heard in the
20 absence of the jury.
21 (5) The court must not grant leave under subsection (3) unless
22 satisfied that --
23 (a) the evidence has substantial probative value; and
24 (b) the probative value of the evidence outweighs any
25 distress, humiliation or embarrassment that may be
26 caused to the complainant as a result of the admission of
27 the evidence.
28 (6) This section does not affect the operation of section 50.
page 163
Evidence Bill 2024
Part 5 Exclusion of evidence
s. 206
1 (7) Evidence that, because of this section, must not be adduced or
2 given in a proceeding is not admissible in the proceeding.
3 Compare:
4 Evidence Act 1906 s. 36A, 36B, 36BA and 36BC
page 164
Evidence Bill 2024
Special arrangements for taking evidence Part 6
Use of video links and audio links by WA courts and Division 1
recognised courts
s. 207
1 Part 6 -- Special arrangements for taking evidence
2 Division 1 -- Use of video links and audio links by WA courts
3 and recognised courts
4 207. Terms used
5 In this Division --
6 corresponding legislation means any provisions of an Act of
7 another State or a Territory that substantially correspond with
8 this Division;
9 participating jurisdiction means --
10 (a) another State or a Territory in which corresponding
11 legislation is in force; or
12 (b) any jurisdiction outside the State prescribed by the
13 regulations for the purposes of this definition to be a
14 participating jurisdiction;
15 recognised court means a court or tribunal of a participating
16 jurisdiction --
17 (a) that is authorised by corresponding legislation to direct
18 that evidence be taken or a submission be made by video
19 link or audio link from this State; or
20 (b) that is prescribed by the regulations for the purposes of
21 this definition to be a recognised court.
22 Compare:
23 Evidence Act 1906 s. 120
24 208. WA court may take evidence by video link or audio link
25 (1) A WA court may, by order, direct that evidence be taken or a
26 submission be received by video link or audio link from a
27 person at a place, whether in or outside this State, that is outside
28 the courtroom or other place where the court is sitting.
page 165
Evidence Bill 2024
Part 6 Special arrangements for taking evidence
Division 1 Use of video links and audio links by WA courts and
recognised courts
s. 209
1 (2) The order may be made --
2 (a) on the application of a party to the proceeding; or
3 (b) on the court's own initiative.
4 (3) The court must not make the order unless satisfied that the video
5 link or audio link is available or can reasonably be made
6 available.
7 (4) The court must not make the order if satisfied that the direction
8 is not in the interests of justice.
9 (5) For the purposes of taking evidence or receiving a submission
10 by video link or audio link from a place in this State in
11 accordance with the direction, the place is taken to be part of the
12 court.
13 (6) For the purposes of taking evidence or receiving a submission
14 by video link or audio link from a place in a participating
15 jurisdiction, the court may exercise in that place any of its
16 powers that the court is permitted, under the law of the
17 jurisdiction, to exercise in that place.
18 (7) This section extends to a proceeding before a WA tribunal.
19 Compare:
20 Evidence Act 1906 s. 121
21 209. Counsel entitled to practise
22 (1) A person who is entitled to practise as a legal practitioner in a
23 participating jurisdiction is entitled to practise as a legal
24 practitioner in relation to --
25 (a) the examination, cross-examination or re-examination of
26 a witness in the participating jurisdiction whose
27 evidence is being given by video link or audio link
28 before a WA court; and
29 (b) the making of a submission by video link or audio link
30 from the participating jurisdiction in a proceeding before
31 a WA court.
page 166
Evidence Bill 2024
Special arrangements for taking evidence Part 6
Use of video links and audio links by WA courts and Division 1
recognised courts
s. 210
1 (2) This section extends to a proceeding before a WA tribunal.
2 Compare:
3 Evidence Act 1906 s. 122
4 210. Recognised court may take evidence or receive submission
5 in this State
6 (1) A recognised court may, for the purposes of a proceeding before
7 it, take evidence or receive a submission by video link or audio
8 link from a person in this State.
9 (2) For the purposes of the proceeding the recognised court may
10 exercise in this State any of its powers in relation to the taking
11 of evidence or the receipt of a submission except its powers --
12 (a) to punish for contempt; and
13 (b) to enforce or execute its orders or process.
14 (3) The laws of the participating jurisdiction (including rules of
15 court) that apply to the proceeding in that jurisdiction also
16 apply, by force of this subsection, to the practice and procedure
17 of the recognised court in taking evidence or receiving a
18 submission by video link or audio link from a person in this
19 State.
20 (4) For the purposes of the court exercising its powers under
21 subsection (2), the place in this State where the evidence is
22 given or the submission is made is taken to be part of the court.
23 (5) Without limiting subsection (2), the recognised court may, by
24 order --
25 (a) direct that the proceeding, or a part of the proceeding, be
26 conducted in private; or
27 (b) require a person to leave a place in this State where the
28 giving of evidence or the making of a submission is
29 taking place or is going to take place; or
page 167
Evidence Bill 2024
Part 6 Special arrangements for taking evidence
Division 1 Use of video links and audio links by WA courts and
recognised courts
s. 211
1 (c) prohibit or restrict the publication of evidence given in
2 the proceeding or of the name of a party to, or a witness
3 in, the proceeding.
4 (6) An order made by a recognised court under subsection (5) may
5 be enforced by the Supreme Court as if it were an order of the
6 Supreme Court.
7 (7) Without limiting subsection (6), a person who contravenes the
8 order --
9 (a) is taken to be in contempt of the Supreme Court; and
10 (b) is punishable accordingly.
11 (8) Subsection (7) does not apply if the person establishes that the
12 contravention should be excused.
13 Compare:
14 Evidence Act 1906 s. 123, 124, 125 and 126
15 211. Privileges, protection and immunity of participants in
16 proceeding in recognised court
17 (1) A judge in a proceeding before a recognised court has, in
18 connection with evidence being taken or a submission being
19 received by video link or audio link from a person in this State,
20 the same privileges, protection and immunity as a judge of the
21 Supreme Court.
22 (2) A person appearing as a legal practitioner in a proceeding
23 before a recognised court has, in connection with evidence
24 being taken or a submission being received by video link or
25 audio link from a person in this State, the same protection and
26 immunity as a barrister has in appearing for a party in a
27 proceeding in the Supreme Court.
28 (3) A person appearing as a witness in a proceeding before a
29 recognised court by video link or audio link from this State has
page 168
Evidence Bill 2024
Special arrangements for taking evidence Part 6
Use of video links and audio links by WA courts and Division 1
recognised courts
s. 212
1 the same protection as a witness in a proceeding in the Supreme
2 Court.
3 Compare:
4 Evidence Act 1906 s. 127
5 212. Recognised court may administer oath in this State
6 (1) A recognised court may, for the purpose of obtaining by video
7 link or audio link the testimony of a person in this State in a
8 proceeding, administer an oath or affirmation in accordance
9 with the practice and procedure of the recognised court.
10 (2) Evidence given by a person on oath or affirmation is, for the
11 purposes of The Criminal Code, testimony given in a judicial
12 proceeding.
13 Compare:
14 Evidence Act 1906 s. 128
15 213. Assistance to recognised court
16 An officer of a WA court or WA tribunal may, at the request of
17 a recognised court --
18 (a) attend at the place in the State where evidence is to be or
19 is being given, or submissions are to be or are being
20 made, in a proceeding before the recognised court; and
21 (b) take action as the recognised court directs to facilitate
22 the proceeding; and
23 (c) assist with the administering by the recognised court of
24 an oath or affirmation.
25 Compare:
26 Evidence Act 1906 s. 129
page 169
Evidence Bill 2024
Part 6 Special arrangements for taking evidence
Division 1 Use of video links and audio links by WA courts and
recognised courts
s. 214
1 214. Contempt of recognised court
2 (1) A person must not, while evidence is being given or a
3 submission is being made in this State by video link or audio
4 link in a proceeding before a recognised court --
5 (a) threaten, intimidate or insult any of the following --
6 (i) a judge in the proceeding;
7 (ii) a master, registrar, deputy registrar or other
8 officer of that court who is taking part in or
9 assisting in the proceeding;
10 (iii) a person appearing in the proceeding as a legal
11 practitioner;
12 (iv) a witness in the proceeding;
13 (v) a juror in the proceeding;
14 or
15 (b) interrupt or obstruct the proceeding; or
16 (c) without lawful excuse disobey an order or direction of
17 the court.
18 (2) A person who contravenes subsection (1) --
19 (a) is taken to be in contempt of the Supreme Court; and
20 (b) is punishable accordingly.
21 Compare:
22 Evidence Act 1906 s. 130
23 215. Operation of other laws
24 (1) This Division does not exclude or limit the operation of any
25 other law of the State that makes provision for the taking of
26 evidence or the making of a submission --
27 (a) in the State for the purpose of a proceeding in the State;
28 and
29 (b) outside the State for the purpose of a proceeding in the
30 State; and
page 170
Evidence Bill 2024
Special arrangements for taking evidence Part 6
Examination of witnesses outside the State Division 2
s. 216
1 (c) in the State for the purpose of a proceeding outside the
2 State.
3 (2) This Division does not affect the operation of Part 7.
4 Compare:
5 Evidence Act 1906 s. 132
6 Division 2 -- Examination of witnesses outside the State
7 216. Terms used
8 (1) In this Division --
9 examination includes any proceeding for the taking of evidence
10 of a person conducted by a judicial authority of a foreign
11 country in relation to a request issued as a result of an order
12 made by a court under this Act;
13 extra-territorial examination order has the meaning given in
14 section 217(1);
15 inferior court means a WA court, except when exercising
16 federal jurisdiction, not being a superior court;
17 judicial authority, in relation to a place outside the State, means
18 a court or person prescribed by the regulations for the purposes
19 of this definition as an appropriate judicial authority for that
20 place.
21 (2) A reference in this Division to a place outside the State is a
22 reference to a place outside the State whether within or outside
23 Australia.
24 Compare:
25 Evidence Act 1906 s. 109
page 171
Evidence Bill 2024
Part 6 Special arrangements for taking evidence
Division 2 Examination of witnesses outside the State
s. 217
1 217. Court may make extra-territorial examination order
2 (1) A court may make any of the following orders (each an
3 extra-territorial examination order) in relation to any person
4 outside the State --
5 (a) an order for the examination of the person on oath or
6 affirmation at any place outside the State before a judge
7 of the court, an officer of the court or any other person
8 the court appoints;
9 (b) an order for the issue of a commission for the
10 examination of the person on oath or affirmation at any
11 place outside the State;
12 (c) an order for the issue of a request to a judicial authority
13 of a place outside the State to take, or to cause to be
14 taken, the evidence of the person.
15 (2) An extra-territorial examination order may be made --
16 (a) only by a superior court; and
17 (b) only if it appears to the court that it is in the interests of
18 justice to do so.
19 (3) A superior court may make an extra-territorial examination
20 order for the purpose of any proceeding before the superior
21 court, on application by a party to the proceeding.
22 (4) The Supreme Court may also make an extra-territorial
23 examination order for the purpose of any proceeding before an
24 inferior court, on application by a party to the proceeding.
25 (5) In determining whether it is in the interests of justice to make an
26 extra-territorial examination order, the matters to which the
27 court must have regard include the following --
28 (a) whether the person is willing or able to come to the
29 State to give evidence in the proceeding;
30 (b) whether the person will be able to give evidence
31 material to any fact in issue in the proceeding;
page 172
Evidence Bill 2024
Special arrangements for taking evidence Part 6
Examination of witnesses outside the State Division 2
s. 218
1 (c) whether, having regard to the interests of the parties to
2 the proceeding, justice will be better served by granting
3 or refusing the order.
4 (6) If a court makes an extra-territorial examination order of the
5 kind referred to in subsection (1)(a) or (b), the court may, at the
6 time of the making of the order or at a subsequent time, give
7 directions relating to the procedure to be followed in and in
8 relation to the examination, including directions as to the time,
9 place and manner of the examination, and to any other matter
10 that the court thinks relevant.
11 (7) If a court makes an extra-territorial examination order of the
12 kind referred to in subsection (1)(c), the court may include in
13 the order a request as to any matter relating to the taking of
14 evidence from the person concerned, including any of the
15 following matters --
16 (a) the examination, cross-examination or re-examination of
17 the person, whether the evidence of the person is given
18 orally, on affidavit or otherwise;
19 (b) the attendance of the legal counsel of each party to the
20 proceeding and the participation of those persons in the
21 examination in appropriate circumstances;
22 (c) any matter prescribed by the regulations for the purposes
23 of this paragraph.
24 Compare:
25 Evidence Act 1906 s. 110 and 111
26 218. Admission of evidence taken under extra-territorial
27 examination order
28 (1) A court may permit a party to tender the following evidence in a
29 proceeding --
30 (a) evidence of a person taken in an examination held as a
31 result of an extra-territorial examination order that was
32 made for the purpose of that proceeding;
page 173
Evidence Bill 2024
Part 6 Special arrangements for taking evidence
Division 2 Examination of witnesses outside the State
s. 218
1 (b) a record of the evidence referred to in paragraph (a).
2 (2) However, evidence of a person must not be admitted under this
3 section if --
4 (a) at the hearing of the proceeding the court is satisfied that
5 the person is in the State and is able to attend the
6 hearing; or
7 (b) the evidence would not have been admissible had it been
8 given or produced at the hearing of the proceeding.
9 (3) The court may exclude from the proceeding evidence taken in
10 an examination held as a result of an extra-territorial
11 examination order, even though it is otherwise admissible, if it
12 is in the interests of justice to do so.
13 (4) If evidence is admitted under this section, the hearsay rule does
14 not apply to evidence of a previous representation taken in an
15 examination, but only if the evidence would have been
16 admissible had it been given or produced at the hearing of the
17 proceeding.
18 (5) This section extends to the following evidence --
19 (a) a document produced at an examination;
20 (b) answers made, whether in writing, or orally and reduced
21 to writing, to any written interrogatories presented at an
22 examination.
23 (6) This section does not affect the functions of the court under
24 Part 5.
25 Compare:
26 Evidence Act 1906 s. 110, 111 and 112
page 174
Evidence Bill 2024
Special arrangements for taking evidence Part 6
Assistance to other Australian courts and foreign courts Division 3
s. 219
1 219. Operation of other laws
2 This Division does not affect the operation of any other written
3 law that makes provision for the examination of witnesses
4 outside the State for the purpose of a proceeding in the State.
5 Compare:
6 Evidence Act 1906 s. 113
7 220. Regulations and rules of court
8 (1) The regulations may make further provision for extra-territorial
9 examination orders and, in particular, for the practice and
10 procedure of a superior court in a proceeding for the making of
11 an extra-territorial examination order.
12 (2) The power of a person or body to make rules of court extends to
13 making rules, not inconsistent with this Act or the regulations,
14 regulating the practice and procedure of a superior court in a
15 proceeding for the making of an extra-territorial examination
16 order.
17 Compare:
18 Evidence Act 1906 s. 114
19 Division 3 -- Assistance to other Australian courts and foreign
20 courts
21 221. Terms used
22 (1) In this Division --
23 assistance application has the meaning given in section 222(1);
24 assistance order has the meaning given in section 223(1);
25 requesting court means a court or tribunal that issues a request
26 or on behalf of which a request is issued, as referred to in
27 section 223(1)(a).
28 (2) A reference in this Division to a proceeding before a court or
29 tribunal includes a reference to a proceeding the institution of
30 which before a court or tribunal is contemplated.
page 175
Evidence Bill 2024
Part 6 Special arrangements for taking evidence
Division 3 Assistance to other Australian courts and foreign courts
s. 222
1 (3) A reference in this Division to a request issued by or on behalf
2 of a court or tribunal includes a reference to any commission,
3 order or other process issued by or on behalf of a court or
4 tribunal.
5 Compare:
6 Evidence Act 1906 s. 115
7 222. Application to Supreme Court for assistance
8 (1) This Division applies if an application (an assistance
9 application) is made to the Supreme Court for assistance in
10 obtaining evidence in the State for the purposes of a proceeding
11 before a court or tribunal exercising jurisdiction in a place
12 outside the State.
13 (2) This Division applies only if the proceeding to which the
14 assistance application relates is --
15 (a) a criminal proceeding before a court exercising
16 jurisdiction in a place outside the State that is in
17 Australia or New Zealand; or
18 (b) a civil proceeding.
19 Compare:
20 Evidence Act 1906 s. 116
21 223. Supreme Court may make order to assist in obtaining
22 evidence
23 (1) The Supreme Court may, on an assistance application, make an
24 order (an assistance order) for obtaining evidence in the State if
25 satisfied that --
26 (a) the assistance application is made for the purposes of a
27 request issued by or on behalf of a court or tribunal
28 exercising jurisdiction in a place outside the State; and
29 (b) the evidence to which the assistance application relates
30 is to be obtained for the purposes of a proceeding before
31 the requesting court.
page 176
Evidence Bill 2024
Special arrangements for taking evidence Part 6
Assistance to other Australian courts and foreign courts Division 3
s. 223
1 (2) An assistance order may include any provisions the Supreme
2 Court considers appropriate for the purpose of giving effect to
3 the request to which the assistance application relates.
4 (3) An assistance order may require a specified person to take any
5 steps the Supreme Court considers appropriate for the purpose
6 of giving effect to the request to which the assistance
7 application relates.
8 (4) Without limiting subsection (2) or (3), an assistance order may
9 make provision for the following --
10 (a) the examination of witnesses, either orally or in writing;
11 (b) the production of documents;
12 (c) the inspection, photographing, preservation, custody or
13 detention of any property;
14 (d) the taking of samples of any property and the carrying
15 out of any experiments on or with any property;
16 (e) the medical examination of any person;
17 (f) without limiting paragraph (e), the taking and testing of
18 samples of blood from any person.
19 (5) An assistance order must not include a requirement unless that
20 requirement could be made to obtain evidence for the purposes
21 of a proceeding in the Supreme Court (whether or not a
22 proceeding of the same description as the proceeding to which
23 the assistance application relates).
24 (6) Subsection (5) does not prevent the making of an order
25 requiring a person to give testimony (either orally or in writing)
26 otherwise than on oath or affirmation if that is requested by the
27 requesting court.
28 (7) An assistance order must not require a person --
29 (a) to state what documents relevant to the proceeding to
30 which the assistance application relates are or have been
31 in the person's possession, custody or power; or
page 177
Evidence Bill 2024
Part 6 Special arrangements for taking evidence
Division 3 Assistance to other Australian courts and foreign courts
s. 224
1 (b) to produce any documents other than particular
2 documents specified in the order and appearing to the
3 Supreme Court to be, or to be likely to be, in the
4 person's possession, custody or power.
5 Compare:
6 Evidence Act 1906 s. 116 and 117
7 224. Privilege of witnesses
8 (1) A person must not be compelled by an assistance order to give
9 any evidence for the purpose of a proceeding before a
10 requesting court if the person could not be compelled to give the
11 evidence --
12 (a) in a similar proceeding in the State; or
13 (b) in a similar proceeding in the place in which the
14 requesting court exercises jurisdiction.
15 (2) Subsection (1)(b) does not apply unless the claim of the person
16 to be exempt from giving evidence is either --
17 (a) supported by a statement contained in the request of the
18 requesting court (whether unconditionally or subject to
19 conditions); or
20 (b) conceded by the applicant for the assistance order.
21 (3) If a claim by a person to be exempt from giving evidence is not
22 supported or conceded as referred to in subsection (2), the
23 person may (subject to subsection (1)(a)) be required to give the
24 evidence to which the claim relates but that evidence must not
25 be transmitted to the requesting court unless --
26 (a) the claim is referred to the requesting court; and
27 (b) the requesting court dismisses the claim.
28 (4) In this section --
29 (a) a reference to giving evidence includes a reference to
30 producing any document or thing; and
page 178
Evidence Bill 2024
Special arrangements for taking evidence Part 6
Assistance to other Australian courts and foreign courts Division 3
s. 225
1 (b) a reference to transmitting evidence given includes a
2 reference to transmitting any document or thing that is
3 produced.
4 Compare:
5 Evidence Act 1906 s. 118
6 225. Rules of court
7 (1) The Supreme Court may make rules of court under the Supreme
8 Court Act 1935 for or with respect to the following --
9 (a) the manner in which an assistance application must be
10 made;
11 (b) the circumstances in which an assistance order may be
12 made;
13 (c) the manner in which a claim of a person to be exempt
14 from giving evidence under an assistance order must be
15 made;
16 (d) any other matters that are necessary or convenient for
17 carrying out or giving effect to this Division.
18 (2) Subsection (1) does not limit the rule-making powers conferred
19 by the Supreme Court Act 1935.
20 Compare:
21 Evidence Act 1906 s. 118A
22 226. Offence of giving false testimony
23 A person who, in giving any testimony (either orally or in
24 writing) otherwise than on oath or affirmation when required to
25 do so by an assistance order, makes a statement that the person
26 knows is false or that the person does not believe is true
27 commits a crime.
28 Penalty: imprisonment for 7 years.
29 Compare:
30 Evidence Act 1906 s. 118B
page 179
Evidence Bill 2024
Part 6 Special arrangements for taking evidence
Division 3 Assistance to other Australian courts and foreign courts
s. 227
1 227. Operation of other laws not excluded
2 This Division does not affect the operation of any other law of
3 the State that makes provision for the taking of evidence in the
4 State for the purpose of a proceeding outside the State.
5 Compare:
6 Evidence Act 1906 s. 118C
page 180
Evidence Bill 2024
Witness assistance measures Part 7
Preliminary Division 1
s. 228
1 Part 7 -- Witness assistance measures
2 Division 1 -- Preliminary
3 228. Terms used
4 (1) In this Part --
5 affected child, in relation to a child protection proceeding,
6 means the child in respect of whom an application under the
7 Children and Community Services Act 2004 Part 4 is made;
8 alter --
9 (a) a recording, includes edit the recording; and
10 (b) a transcript of a recording, includes edit the transcript;
11 child protection proceeding --
12 (a) means protection proceedings as defined in the Children
13 and Community Services Act 2004 section 3; and
14 (b) includes any related proceedings and any protection
15 proceedings dealt with under Part 5 of that Act;
16 destroy, a recording, includes --
17 (a) erase, delete or obliterate all or any part of the recording;
18 or
19 (b) render any images or sounds recorded in the recording
20 irrecoverable;
21 out-of-court representation has the meaning given in
22 section 235;
23 pre-recording procedure means a procedure by which a
24 witness's evidence in a proceeding is given at a special hearing
25 (as defined in section 261) and recorded on a visual recording
26 that is later presented to the court;
27 recorded interview has the meaning given in section 251;
28 recorded statement has the meaning given in section 239;
page 181
Evidence Bill 2024
Part 7 Witness assistance measures
Division 1 Preliminary
s. 229
1 special procedure for giving evidence means any of the
2 following procedures for giving evidence --
3 (a) a pre-recording procedure;
4 (b) a video link separation procedure;
5 (c) a screening procedure;
6 special witness means a witness in a proceeding --
7 (a) who must be treated as a special witness under
8 section 229; or
9 (b) who the court declares to be a special witness under
10 section 230;
11 visual recording --
12 (a) means any recording on any medium from which a
13 moving image may be produced by any means; and
14 (b) includes the accompanying sound track.
15 (2) A provision of this Part that applies to a child protection
16 proceeding applies as if --
17 (a) a reference to an accused were a reference to any party
18 to the proceeding, other than the affected child or an
19 applicant under the Children and Community Services
20 Act 2004 Part 4 or 5 who is an officer as defined in
21 section 3 of that Act; and
22 (b) a reference to a complainant were a reference to the
23 affected child.
24 Compare:
25 Evidence Act 1906 s. 106A
26 229. Witnesses who must be treated as special witness
27 (1) In a criminal proceeding, a witness must be treated as a special
28 witness --
29 (a) if the proceeding is a proceeding in a superior court for a
30 sexual offence and the witness is the complainant; or
page 182
Evidence Bill 2024
Witness assistance measures Part 7
Preliminary Division 1
s. 230
1 (b) if the proceeding is for a criminal or identified
2 organisation offence and the witness is --
3 (i) the complainant; or
4 (ii) any witness for the prosecution;
5 or
6 (c) if the proceeding is a proceeding in a superior court for a
7 family violence offence and the witness is the
8 complainant; or
9 (d) if the witness has a mental impairment that affects the
10 witness's ability to give evidence; or
11 (e) in any other circumstances specified in the regulations
12 for the purposes of this paragraph.
13 (2) A power to specify circumstances conferred by
14 subsection (1)(e) includes a power to specify circumstances by
15 reference to any of the following --
16 (a) the type of offence to which the proceeding relates;
17 (b) the characteristics of the witness;
18 (c) the court in which the proceedings are heard.
19 (3) In deciding whether a witness must be treated as a special
20 witness under subsection (1)(d) or (e), a court may inform itself
21 as it thinks fit.
22 230. Witnesses who may be declared to be special witness
23 (1) A court may, by order, declare a witness to be a special witness
24 in a proceeding if the court is of the opinion that, unless the
25 witness is treated as a special witness, the witness --
26 (a) is unlikely to be able to give evidence, or to give
27 evidence satisfactorily, because of a disability; or
28 (b) is likely to be intimidated or distressed, because of age,
29 cultural background, relationship to any party in the
30 proceeding, the nature of the subject matter of the
page 183
Evidence Bill 2024
Part 7 Witness assistance measures
Division 1 Preliminary
s. 230
1 evidence or any other factor that the court considers
2 relevant.
3 (2) An order under this section may be made --
4 (a) on application by a party to the proceeding, on notice to
5 the other parties; or
6 (b) on the court's own initiative.
7 (3) The court must be satisfied that it is in the interests of justice to
8 make the order.
9 (4) The court may at any time vary or revoke an order under this
10 section.
11 (5) If the proceeding in which a person is declared to be a special
12 witness is a proceeding before a jury, the court must instruct the
13 jury that --
14 (a) the making of the declaration is a routine practice of the
15 court; and
16 (b) the jury should not draw any inference as to the guilt of
17 an accused or the culpability of a party from the making
18 of the declaration on the court's own initiative.
19 (6) In deciding whether to make, vary or revoke an order declaring
20 a witness to be a special witness, the court may inform itself as
21 it thinks fit.
22 (7) This section does not apply in respect of a witness if the witness
23 must be treated as a special witness under section 229.
24 Compare:
25 Evidence Act 1906 s. 106R
page 184
Evidence Bill 2024
Witness assistance measures Part 7
Support and communication assistance for children and Division 2
special witnesses
s. 231
1 Division 2 -- Support and communication assistance for
2 children and special witnesses
3 231. Use of support person
4 (1) The following witnesses are entitled, while giving evidence in a
5 proceeding, to have a person nearby to provide the witness with
6 support --
7 (a) a witness who is a child when the proceeding
8 commences;
9 (b) a special witness.
10 (2) The person who provides support must be a person approved by
11 the court and must not be a person who is a witness in, or a
12 party to, the proceeding.
13 Compare:
14 Evidence Act 1906 s. 106E and 106R(4)(a)
15 232. Use of support animal
16 (1) The following witnesses may, with the approval of the court,
17 have an animal (a support animal) nearby to provide the
18 witness with support while the witness is giving evidence --
19 (a) a witness who is a child when the proceeding
20 commences;
21 (b) a special witness.
22 (2) The use of the support animal must comply with any
23 requirements imposed by the court or prescribed by the
24 regulations for the purposes of this subsection.
25 (3) This section does not affect any entitlement that a person with a
26 disability has to be accompanied by an assistance animal as
27 defined in the Disability Discrimination Act 1992
28 (Commonwealth) section 9(2).
page 185
Evidence Bill 2024
Part 7 Witness assistance measures
Division 2 Support and communication assistance for children and
special witnesses
s. 233
1 233. Use of communicator
2 (1) A court may, on its own initiative or on the application of a
3 party, appoint a person to act as a communicator for a witness
4 while the witness is giving evidence if --
5 (a) the witness is a child when the proceeding commences
6 or a special witness; and
7 (b) the court considers it in the interests of justice to do so.
8 (2) The functions of the person acting as a communicator are, if
9 requested by the judge, to communicate and explain --
10 (a) to the witness, questions put to the witness; and
11 (b) to the court, evidence given by the witness.
12 (3) The use of a communicator must comply with any requirements
13 imposed by the court or prescribed by the regulations for the
14 purposes of this subsection.
15 (4) The court may appoint any person it considers suitable and
16 competent to act as a communicator for a witness under this
17 section, including a family member or carer.
18 (5) It is not necessary for the person appointed as a communicator
19 to have any particular training, study or experience.
20 (6) A person appointed to act as a communicator must either take
21 an oath or make an affirmation, in a form directed by the court,
22 that the person will exercise the person's functions as a
23 communicator to the best of the person's ability.
24 (7) A person who, while performing or purporting to perform a
25 function as a communicator under this section, makes any
26 statement the person knows to be false or misleading to a
27 witness or the court commits a crime.
28 Penalty for this subsection: imprisonment for 5 years.
29 Summary conviction penalty for this subsection: imprisonment
30 for 2 years or a fine of $24 000.
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Admission of out-of-court representations Division 3
s. 234
1 Compare:
2 Evidence Act 1906 s. 106F and 106R(4)(b)
3 Division 3 -- Admission of out-of-court representations
4 234. Application of Division
5 This Division applies to the following proceedings --
6 (a) a criminal proceeding for a sexual offence if the
7 complainant is a child when the proceeding commences;
8 (b) a criminal proceeding for a family violence offence if
9 the complainant is a child when the proceeding
10 commences;
11 (c) a child protection proceeding.
12 Compare:
13 Evidence Act 1906 s. 106H and Schedule 7
14 235. Term used: out-of-court representation
15 In this Division --
16 out-of-court representation --
17 (a) means a representation that relates to a fact in issue in a
18 proceeding to which this Division applies and that was
19 made by a person to another person before the
20 proceeding commenced, whether or not it is recorded;
21 but
22 (b) does not include --
23 (i) a recorded statement that is admissible under
24 Division 4; or
25 (ii) a recorded interview that is admissible under
26 Division 5.
27 Compare:
28 Evidence Act 1906 s. 106H(3)
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Evidence Bill 2024
Part 7 Witness assistance measures
Division 3 Admission of out-of-court representations
s. 236
1 236. Admission of out-of-court representations
2 (1) A court may admit into evidence an out-of-court representation
3 made by a complainant if --
4 (a) a transcript of the out-of-court representation or, if the
5 out-of-court representation is not recorded in writing or
6 electronically, details of the out-of-court representation
7 have been given to the accused and the accused's legal
8 counsel; and
9 (b) in the case of an out-of-court representation made to a
10 police officer of this State that is recorded in a visual
11 recording or audio recording --
12 (i) a copy of the recording has been given to the
13 accused's legal counsel; or
14 (ii) if the accused is not represented by legal counsel,
15 the accused has been given a reasonable
16 opportunity, in accordance with the regulations,
17 to view the recording (if it is a visual recording)
18 or to hear the recording (if it is an audio
19 recording);
20 and
21 (c) in the case of an out-of-court representation that is
22 recorded in a visual recording or audio recording, and
23 which is not an out-of-court representation made to a
24 police officer of this State, a copy of the recording has
25 been given to the accused and the accused's legal
26 counsel; and
27 (d) the accused is given an opportunity to cross-examine the
28 complainant.
29 (2) Subsection (1)(b) and (c) refer to a copy of the original
30 recording of an out-of-court representation that has not been
31 altered, even if an altered version is to be played to the court.
32 (3) If an out-of-court representation is admitted, evidence of the
33 making and content of the out-of-court representation must be
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Admission of out-of-court representations Division 3
s. 236
1 given by the person to whom the complainant made the
2 out-of-court representation.
3 (4) If an out-of-court representation is recorded in a written
4 statement made in accordance with the Criminal Procedure
5 Act 2004 Schedule 3 clause 4(1), the written statement may be
6 admitted as evidence of the making and content of the
7 out-of-court representation by the complainant.
8 (5) If an out-of-court representation is recorded in a visual
9 recording or an audio recording, the recording may be admitted
10 as evidence of the making and content of the out-of-court
11 representation by the complainant.
12 (6) An out-of-court representation may be admitted into evidence
13 whether or not the complainant is to give evidence in chief in
14 the proceeding.
15 (7) The admission of an out-of-court representation does not
16 prevent a recorded interview or recorded statement being
17 admitted as the evidence in chief of a complainant.
18 (8) This section does not affect the operation of section 57.
19 (9) In a child protection proceeding, this section does not affect the
20 operation of the Children and Community Services Act 2004
21 section 150.
22 (10) The accused is not entitled to be in possession of, or of a copy
23 of --
24 (a) a visual recording or audio recording of an out-of-court
25 representation made to a police officer of this State; or
26 (b) any visual recording or audio recording of evidence that
27 incorporates a visual recording or audio recording of an
28 out-of-court representation made to a police officer of
29 this State.
30 Compare:
31 Evidence Act 1906 s. 106H
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Evidence Bill 2024
Part 7 Witness assistance measures
Division 4 Admission of recorded statements
s. 237
1 237. Application of rules of evidence
2 (1) The hearsay rule does not prevent the admission or use of
3 evidence of an out-of-court representation to prove the existence
4 of an asserted fact.
5 (2) The opinion rule does not prevent the admission or use of
6 evidence of an opinion expressed by a complainant in an
7 out-of-court representation to prove the existence of a fact about
8 the existence of which the opinion was expressed.
9 Division 4 -- Admission of recorded statements
10 238. Application of Division
11 (1) This Division applies to the following proceedings --
12 (a) a criminal proceeding for a family violence offence;
13 (b) any other criminal proceeding in the circumstances
14 specified in the regulations for the purposes of this
15 paragraph.
16 (2) A power to specify circumstances conferred by
17 subsection (1)(b) includes a power to specify circumstances by
18 reference to any of the following --
19 (a) the type of offence to which the proceeding relates;
20 (b) the characteristics of the complainant;
21 (c) the court in which the proceedings are heard.
22 (3) This Division and the regulations under this Division have
23 effect in addition to, and do not limit the operation of, any other
24 provision of this Act or any written law or principle or rule of
25 common law or equity under which a recorded statement is
26 admissible in a proceeding.
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Admission of recorded statements Division 4
s. 239
1 239. Terms used
2 In this Division --
3 obtain, a recorded statement, means obtain the statement that is
4 recorded in the recorded statement;
5 recorded statement means a visual recording or audio recording
6 of a statement made by a person to a police officer about an
7 offence, not being a statement made by a person accused of the
8 offence;
9 statement admissibility regulations has the meaning given in
10 section 241(1).
11 240. Recorded statement admissible as evidence in chief
12 (1) A recorded statement of a complainant is admissible under this
13 Division as the whole or part of the evidence in chief of the
14 complainant if the court is satisfied that --
15 (a) the complainant consented to the making of the recorded
16 statement; and
17 (b) the recorded statement was made as soon as practicable
18 after the commission of the offence to which the
19 proceeding relates; and
20 (c) at the time the recorded statement was made, the
21 complainant --
22 (i) had reached 18 years of age; and
23 (ii) was competent to give sworn or unsworn
24 evidence; and
25 (iii) was capable of giving consent to the making of
26 the recorded statement;
27 and
28 (d) in the recorded statement, the complainant --
29 (i) states or confirms the complainant's name and
30 age; and
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Division 4 Admission of recorded statements
s. 240
1 (ii) indicates consent to the making of the recorded
2 statement; and
3 (iii) makes a declaration to the effect of
4 subsection (2);
5 and
6 (e) the police officer who obtained the recorded
7 statement --
8 (i) was qualified to obtain the recorded statement
9 under the statement admissibility regulations;
10 and
11 (ii) complied with the Criminal Investigation
12 Act 2006 section 124B(3);
13 and
14 (f) the recorded statement meets any other requirements of
15 the statement admissibility regulations to the extent
16 required by those regulations.
17 (2) The declaration required under subsection (1)(d)(iii) is as
18 follows --
19 This statement is true to the best of my knowledge and belief.
20 I have made this statement knowing that, if it is tendered in
21 evidence, I will be guilty of an offence if I have included in
22 the statement anything that I know to be false or that I do not
23 believe is true.
24 (3) A person who, in a recorded statement that is tendered in
25 evidence, makes a declaration to the effect of subsection (2) and
26 includes anything in the statement that the person knows is false
27 or that the person does not believe is true, commits a crime.
28 Penalty for this subsection: imprisonment for 7 years.
29 (4) A recorded statement is admissible under this Division --
30 (a) even if the person who made the statement that is
31 recorded is capable of giving evidence at the
32 proceeding; and
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Admission of recorded statements Division 4
s. 241
1 (b) even if the recorded statement was obtained before the
2 proceeding commenced.
3 241. Statement admissibility regulations
4 (1) Regulations made for the purposes of this section (the statement
5 admissibility regulations) may specify requirements relating to
6 the admission of a recorded statement under this Division,
7 including, without limitation, relating to the following --
8 (a) the class of police officers who are qualified to obtain a
9 recorded statement;
10 (b) the manner in which a statement must be obtained;
11 (c) the manner in which a statement must be recorded;
12 (d) the extent to which any specified requirements must be
13 met.
14 (2) The statement admissibility regulations may specify the class of
15 police officers who are qualified to obtain a recorded statement
16 by reference to the office or position held by the police officer,
17 by reference to training or experience, or a combination of those
18 criteria.
19 (3) The requirements specified by the statement admissibility
20 regulations may be different for different classes of
21 complainant.
22 242. Statement must be provided to accused
23 (1) A court must not admit a recorded statement under this Division
24 unless --
25 (a) a transcript of the recorded statement has been given to
26 the accused and the accused's legal counsel; and
27 (b) a copy of the recorded statement has been given to the
28 accused's legal counsel; and
29 (c) if the accused is not represented by legal counsel, the
30 accused has been given a reasonable opportunity, in
31 accordance with the regulations, to view the recorded
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Division 4 Admission of recorded statements
s. 243
1 statement (if it is a visual recording) or hear the recorded
2 statement (if it is an audio recording).
3 (2) Subsection (1)(b) and (c) refer to a copy of the original version
4 of the recorded statement that has not been altered, even if an
5 altered version is to be played to the court.
6 (3) The accused is not entitled to be in possession of, or of a copy
7 of --
8 (a) a recorded statement; or
9 (b) any visual recording or audio recording of evidence that
10 incorporates a recorded statement.
11 243. Accused must be given opportunity to cross-examine
12 complainant
13 (1) A court must not admit a recorded statement under this Division
14 unless the accused is given an opportunity to cross-examine the
15 complainant.
16 (2) Subsection (1) does not apply if the court is satisfied that --
17 (a) the complainant is not available to give evidence; or
18 (b) the complainant is out of the State and is not able to give
19 evidence at the proceeding by means of a video link or
20 an audio link, even if the witness might return at some
21 future time; or
22 (c) the complainant is being kept out of the way by the
23 accused; or
24 (d) all the parties consent and the interests of justice do not
25 require the presence of the complainant.
26 (3) However, if there is a prospect that the complainant, in the
27 circumstances referred to in subsection (2)(a), might become
28 available to give evidence, the court need not admit the
29 statement but may adjourn the hearing of the proceeding.
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Admission of recorded statements Division 4
s. 244
1 (4) Subsection (1) does not prevent any further evidence of the
2 complainant being given under a special procedure for giving
3 evidence.
4 (5) This section does not affect the operation of section 57.
5 244. Application of rules of evidence
6 (1) The hearsay rule does not prevent the admission or use of
7 evidence of a representation made by a complainant in a
8 recorded statement to prove the existence of an asserted fact.
9 (2) The opinion rule does not prevent the admission or use of
10 evidence of an opinion expressed by a complainant in a
11 recorded statement to prove the existence of a fact about the
12 existence of which the opinion was expressed.
13 (3) The rule that leading questions must not be put to a witness in
14 examination in chief provided for in section 46 does not prevent
15 a court from allowing any part of a recorded statement to be
16 admitted as the evidence in chief of a complainant if the court is
17 satisfied that the manner in which the recorded statement was
18 obtained meets the requirements of the statement admissibility
19 regulations to the extent required by those regulations.
20 245. Presentation of recorded statement
21 (1) The court may give directions as to the manner in which a
22 recorded statement must be presented to the court and the
23 excision of matters from it.
24 (2) Without limiting subsection (1), the court may give any of the
25 following directions --
26 (a) a direction that the recorded statement be played to the
27 court;
28 (b) a direction that the recorded statement be tendered to the
29 court;
30 (c) a direction that a transcript of the recorded statement be
31 tendered to the court.
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Division 4 Admission of recorded statements
s. 246
1 (3) A jury in the proceeding may, with the leave of the court, be
2 given access to a transcript of a recorded statement.
3 246. Further evidence
4 If a recorded statement is admitted as all or part of the evidence
5 in chief of a complainant, the court may give directions as to --
6 (a) the manner in which further evidence in chief of the
7 complainant may be given at the proceeding; and
8 (b) the manner in which any cross-examination or
9 re-examination of the complainant must be conducted at
10 the proceeding.
11 247. Presence of complainant not required during presentation of
12 statement
13 (1) A complainant may, but is not required to, be present in the
14 courtroom when a recorded statement of the complainant is
15 played to the court.
16 (2) The court may direct that arrangements be made that enable the
17 complainant to view the proceeding from outside the courtroom
18 when the recorded statement is played, by closed-circuit
19 television or otherwise.
20 (3) The arrangements that enable the complainant to view the
21 proceeding from outside the courtroom must ensure that the
22 complainant is not visible or audible to anyone in the court,
23 other than the judge.
24 (4) Subsection (1) does not prevent the court from directing the
25 complainant to leave the courtroom while the recorded
26 statement is played if the court considers it appropriate to do so
27 in the interests of justice.
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Evidence Bill 2024
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Admission of recorded statements Division 4
s. 248
1 248. Warning and comments to jury
2 (1) A judge in any proceeding before a jury in which a recorded
3 statement is admitted under this Division as the whole or part of
4 the evidence in chief of a person must instruct the jury that --
5 (a) the procedure is a routine practice of the court; and
6 (b) the jury should not draw an inference as to the accused's
7 guilt from the use of the procedure.
8 (2) In a proceeding before a jury, the judge, the accused or the
9 accused's legal counsel must not comment to the jury about a
10 failure by the prosecutor to adduce a recorded statement of a
11 person as the evidence in chief of a person under this Division.
12 (3) Subsection (2) does not prevent a judge from directing the jury
13 about a contravention of that subsection by the accused or the
14 accused's legal counsel if it is in the interests of justice to do so.
15 249. Other regulations
16 The regulations may make further provision for recorded
17 statements that are admissible under this Division or obtained
18 for use as evidence under this Division, including, without
19 limitation, for or with respect to the following --
20 (a) the alteration, playing, custody, possession, storage,
21 copying, transcription or destruction of recorded
22 statements;
23 (b) the records that are to be kept about recorded
24 statements;
25 (c) access to a recorded statement by the prosecutor for the
26 purposes of any proceeding in which the recorded
27 statement may be admitted as evidence in chief of a
28 person;
29 (d) access to and use of a recorded statement for the
30 purposes of any proceeding in the Children's Court or
31 the Family Court (whether or not it has been admitted in
32 evidence under this Division);
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Division 5 Admission of recorded interviews
s. 250
1 (e) access to and use of a recorded statement otherwise than
2 for the purposes of a proceeding in which the statement
3 may be admitted under this Division or as referred to in
4 paragraph (d);
5 (f) the manner in which compliance with any of the
6 requirements for admissibility under this Division may
7 be proved in a proceeding.
8 Division 5 -- Admission of recorded interviews
9 250. Application of Division
10 (1) This Division applies to a criminal proceeding.
11 (2) This Division, and the regulations under this Division, do not
12 affect the operation of any other provision of this Act or any
13 written law or principle or rule of common law or equity under
14 which a recorded interview is admissible in a proceeding.
15 Compare:
16 Evidence Act 1906 s. 106HD
17 251. Terms used
18 In this Division --
19 interview admissibility regulations has the meaning given in
20 section 253(1);
21 recorded interview means a visual recording of an interview
22 with a person about an offence, not being an interview with a
23 person accused of the offence.
24 252. Recorded interview admissible as evidence in chief
25 (1) A recorded interview with a person is admissible under this
26 Division as the whole or part of the evidence in chief of the
27 person in the following proceedings --
28 (a) a criminal proceeding for a sexual offence, if the person
29 interviewed --
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Admission of recorded interviews Division 5
s. 252
1 (i) is the complainant; and
2 (ii) was a child at the time of the offence (regardless
3 of the person's age at the time of the interview);
4 (b) any criminal proceeding, if the court is satisfied that the
5 person interviewed --
6 (i) was a child at the time of the interview; or
7 (ii) is a person with a mental impairment who,
8 because of that mental impairment, is a special
9 witness in the proceeding.
10 (2) The court must not admit the recorded interview under this
11 Division unless --
12 (a) the court is satisfied that --
13 (i) the person who conducted the interview in the
14 recorded interview was qualified to conduct the
15 interview under the interview admissibility
16 regulations; and
17 (ii) the recorded interview meets any other
18 requirements of the interview admissibility
19 regulations to the extent required by those
20 regulations;
21 and
22 (b) the accused is given an opportunity to cross-examine the
23 person interviewed.
24 (3) A recorded interview with a person is admissible under this
25 Division --
26 (a) whether or not the interview was conducted with the
27 consent of a parent or guardian of the person; and
28 (b) irrespective of the age or maturity of the person at the
29 time of the proceeding; and
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Division 5 Admission of recorded interviews
s. 253
1 (c) even if the person is capable of giving evidence at the
2 proceeding; and
3 (d) even if conducted before the proceeding commenced.
4 (4) This section does not affect the operation of section 57.
5 Compare:
6 Evidence Act 1906 s. 106HA and 106HB
7 253. Regulations may specify admissibility requirements for
8 interviews
9 (1) Regulations made for the purposes of this section (the interview
10 admissibility regulations) may specify requirements relating to
11 the admission of recorded interviews under this Division,
12 including, without limitation, the following --
13 (a) the class of persons who are qualified to conduct the
14 interview that is recorded;
15 (b) the manner in which the interview must be conducted;
16 (c) the manner in which the interview must be recorded;
17 (d) the information that must be recorded;
18 (e) requirements relating to apparent level of understanding
19 or cognitive functioning of the person being
20 interviewed;
21 (f) the extent to which any specified requirements must be
22 met.
23 (2) The interview admissibility regulations may specify the class of
24 persons who are qualified to conduct an interview by reference
25 to the office or position held by the person, by reference to
26 training or experience, or by a combination of those criteria.
27 (3) The requirements specified by the interview admissibility
28 regulations may be different for different classes of person
29 interviewed.
30 Compare:
31 Evidence Act 1906 s. 106HC
page 200
Evidence Bill 2024
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Admission of recorded interviews Division 5
s. 254
1 254. Interview must be provided to accused
2 (1) A court must not admit a recorded interview under this Division
3 unless --
4 (a) a transcript of the interview has been given to the
5 accused and the accused's legal counsel; and
6 (b) a copy of the recorded interview has been given to the
7 accused's legal counsel; and
8 (c) if the accused is not represented by legal counsel, the
9 accused has been given a reasonable opportunity, in
10 accordance with the regulations, to view the recorded
11 interview.
12 (2) Subsection (1)(b) and (c) refer to a copy of the original version
13 of the recorded interview that has not been altered, even if an
14 altered version is to be played to the court.
15 (3) The accused is not entitled to be in possession of, or of a copy
16 of --
17 (a) a recorded interview; or
18 (b) any visual recording or audio recording of evidence that
19 incorporates a recorded interview.
20 Compare:
21 Evidence Act 1906 s. 106HB(2) and (3)
22 255. Application of rules of evidence
23 (1) The hearsay rule does not prevent the admission or use of
24 evidence of a representation made by a person in a recorded
25 interview to prove the existence of an asserted fact.
26 (2) The opinion rule does not prevent the admission or use of
27 evidence of an opinion expressed by a person in a recorded
28 interview to prove the existence of a fact about the existence of
29 which the opinion was expressed.
30 (3) The rule that leading questions must not be put to a witness in
31 examination in chief provided for in section 46 does not prevent
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Division 5 Admission of recorded interviews
s. 256
1 a court from allowing any part of a recorded interview to be
2 admitted as the evidence in chief of a person if the court is
3 satisfied that the manner in which the interview was conducted
4 complies with the interview admissibility regulations to the
5 extent required by those regulations.
6 Compare:
7 Evidence Act 1906 s. 106HB(4)
8 256. Presentation of recorded interview
9 (1) A court may give directions as to the manner in which a
10 recorded interview must be presented to the court and the
11 excision of matters from it.
12 (2) Without limiting subsection (1), the court may give any of the
13 following directions --
14 (a) a direction that the recorded interview be played to the
15 court;
16 (b) a direction that the recorded interview be tendered to the
17 court;
18 (c) a direction that a transcript of the recorded interview be
19 tendered to the court.
20 (3) A jury in the proceeding may, with the leave of the court, be
21 given access to a transcript of a recorded interview.
22 Compare:
23 Evidence Act 1906 s. 106HB(5)(a)
24 257. Further evidence
25 If a recorded interview is admitted as all or part of the evidence
26 in chief of a person, the court may give directions as to --
27 (a) the manner in which further evidence in chief of the
28 person may be given at the proceeding; and
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Admission of recorded interviews Division 5
s. 258
1 (b) the manner in which any cross-examination or
2 re-examination of the person must be conducted at the
3 proceeding.
4 Compare:
5 Evidence Act 1906 s. 106HB(5)(b)
6 258. Presence of person interviewed not required during
7 presentation of interview
8 (1) A person interviewed in a recorded interview may, but is not
9 required to, be present in the courtroom when the recorded
10 interview is played to the court.
11 (2) The court may direct that arrangements be made that enable the
12 person to view the proceeding from outside the courtroom when
13 the recorded interview is played, by closed-circuit television or
14 otherwise.
15 (3) The arrangements that enable the person to view the proceeding
16 from outside the courtroom must ensure that the person is not
17 visible or audible to anyone in the court, other than the judge.
18 (4) Subsection (1) does not prevent the court from directing the
19 person to leave the courtroom while the recorded interview is
20 played if the court considers it appropriate to do so in the
21 interests of justice.
22 Compare:
23 Evidence Act 1906 s. 106HB(6a)
24 259. Warning and comments to jury
25 (1) A judge in any proceeding before a jury in which a recorded
26 interview is admitted under this Division as the whole or part of
27 the evidence in chief of a person must instruct the jury that --
28 (a) the procedure is a routine practice of the court; and
29 (b) the jury should not draw an inference as to the guilt of
30 the accused from the use of the procedure.
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Division 5 Admission of recorded interviews
s. 260
1 (2) In a proceeding before a jury, the judge, the accused or the
2 accused's legal counsel must not comment to the jury about a
3 failure by the prosecutor to adduce a recorded interview with a
4 person as the evidence in chief of the person under this
5 Division.
6 (3) Subsection (2) does not prevent a judge from directing the jury
7 about a contravention of that subsection by the accused or the
8 accused's legal counsel if it is in the interests of justice to do so.
9 Compare:
10 Evidence Act 1906 s. 106HB(7)
11 260. Other regulations
12 The regulations may make further provision for recorded
13 interviews that are admissible under this Division or made for
14 use as evidence under this Division, including, without
15 limitation, for or with respect to the following --
16 (a) the alteration, playing, custody, possession, storage,
17 copying, transcription or destruction of recorded
18 interviews;
19 (b) the records that are to be kept about a recorded
20 interview;
21 (c) access to a recorded interview by the prosecutor for the
22 purposes of any proceeding in which the recorded
23 interview may be admitted as evidence in chief of a
24 person;
25 (d) access to and use of a recorded interview for the
26 purposes of any proceeding in the Children's Court or
27 the Family Court (whether or not it has been admitted in
28 evidence under this Division);
29 (e) access to and use of a recorded interview otherwise than
30 for the purposes of a proceeding in which the interview
31 may be admitted under this Division or as referred to in
32 paragraph (d);
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Pre-recording procedure Division 6
s. 261
1 (f) the manner in which compliance with any of the
2 requirements for admissibility under this Division may
3 be proved in a proceeding.
4 Compare:
5 Evidence Act 1906 s. 106HC
6 Division 6 -- Pre-recording procedure
7 261. Terms used
8 In this Division --
9 pre-recording order has the meaning given in section 262(1);
10 special hearing means a special hearing held for the purposes of
11 a pre-recording procedure.
12 262. General provisions about pre-recording orders
13 (1) A pre-recording order is an order of a court under section 263
14 directing that the whole or any part of the evidence of a witness
15 in a proceeding be given using a pre-recording procedure.
16 (2) A pre-recording order may be made by a court --
17 (a) on the application of the party proposing to call the
18 witness; or
19 (b) on the court's own initiative.
20 (3) A pre-recording order may include any directions the court
21 making the order thinks fit relating to the pre-recording
22 procedure, including, but not limited to, the following --
23 (a) the conduct of the special hearing at which the evidence
24 of the witness is to be given;
25 (b) arrangements for examination of the witness, including
26 the presentation and incorporation of any recorded
27 statement or recorded interview of the witness at the
28 special hearing;
29 (c) arrangements for cross-examination or re-examination
30 of the witness;
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Division 6 Pre-recording procedure
s. 263
1 (d) the place at which the special hearing is to be held
2 (whether in the courtroom or a separate room);
3 (e) the persons who may be present in the same room as the
4 witness when the witness's evidence is given;
5 (f) arrangements for an accused or a party to observe or
6 listen to the special hearing.
7 (4) A pre-recording order must not be inconsistent with the
8 requirements for a pre-recording procedure specified in this
9 Division.
10 (5) A pre-recording order may be varied or revoked by further order
11 of the court made --
12 (a) on the application of a party; or
13 (b) on the court's own initiative.
14 (6) A party to a proceeding must be served with a copy of an
15 application by another party for --
16 (a) a pre-recording order; or
17 (b) the variation or revocation of a pre-recording order.
18 Compare:
19 Evidence Act 1906 s. 106I, 106K and 106RA
20 263. Circumstances in which pre-recording order may be made
21 (1) A court may make a pre-recording order directing that the
22 whole or any part of the evidence of the witness be given using
23 a pre-recording procedure --
24 (a) if the witness (not being the accused) is a child when the
25 proceeding commences; or
26 (b) if the witness --
27 (i) is the complainant in a criminal proceeding for a
28 sexual offence; and
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1 (ii) was a child at the time of the offence (regardless
2 of the witness's age at the time of the
3 proceeding);
4 or
5 (c) if the witness is a special witness in a criminal
6 proceeding; or
7 (d) if the court is satisfied that the witness is likely to be out
8 of the State at the time of the proceeding and will not be
9 able to give evidence at the proceeding by means of a
10 video link or an audio link; or
11 (e) in any circumstances specified in the regulations for the
12 purposes of this paragraph; or
13 (f) in any other circumstances that, in the opinion of the
14 court, justify the use of a pre-recording procedure.
15 (2) A court must have regard to the interests of justice in deciding
16 whether to make a pre-recording order in respect of a witness
17 under this section, including --
18 (a) the needs of the witness; and
19 (b) the length of time until a trial is likely to be held.
20 (3) A power to specify circumstances under subsection (1)(e)
21 includes a power to specify circumstances by reference to any
22 of the following --
23 (a) the characteristics of the witness;
24 (b) the type of proceeding;
25 (c) the location of the proceeding.
26 (4) In deciding whether the court is satisfied of the circumstances
27 referred to in subsection (1)(e) or (f), the court may inform itself
28 as it thinks fit.
29 Compare:
30 Evidence Act 1906 s. 106I and 106RA
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Division 6 Pre-recording procedure
s. 264
1 264. Conduct of special hearing
2 (1) A witness may give evidence at a special hearing in accordance
3 with a pre-recording order, subject to the control of the
4 presiding judge.
5 (2) The usual rules of evidence apply to the special hearing, except
6 as otherwise provided by this Division.
7 (3) More than 1 special hearing may be held for the purposes of
8 obtaining the evidence of the witness and, in that case, this
9 Division applies in relation to each special hearing with any
10 necessary modifications.
11 Compare:
12 Evidence Act 1906 s. 106K(3) and (5)
13 265. Restrictions on persons who may be present at special
14 hearing
15 (1) A person (including an accused) must not be in the same room
16 as a witness when the witness's evidence is given at a special
17 hearing unless the person is the presiding judge or a person
18 authorised by a pre-recording order.
19 (2) In a criminal proceeding or child protection proceeding, an
20 accused must not be in, and cannot be authorised by a
21 pre-recording order to be in, the same room as a witness when
22 the witness's evidence is given at a special hearing --
23 (a) if the witness is a child when the proceeding
24 commences; or
25 (b) if the witness --
26 (i) is the complainant in a criminal proceeding for a
27 sexual offence; and
28 (ii) was a child at the time of the offence (regardless
29 of the witness's age at the time of the
30 proceeding);
31 or
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1 (c) if the witness is a special witness; or
2 (d) in any other circumstances specified in the regulations
3 for the purposes of this paragraph.
4 (3) However, the accused must --
5 (a) be able to observe the special hearing by means of a
6 video link or, if section 266 applies, to listen to the
7 special hearing by means of an audio link; and
8 (b) at all times have the means of communicating with the
9 accused's legal counsel or, if the accused is not
10 represented, with the court.
11 (4) This section applies despite the Criminal Procedure Act 2004
12 section 88.
13 (5) If an accused gives evidence at a special hearing under a
14 pre-recording order, a reference in subsections (1) to (3) to the
15 accused is a reference to any other accused in the proceeding.
16 Compare:
17 Evidence Act 1906 s. 106K(3)
18 266. Alternative arrangements for attendance at special hearing
19 (1) A court may direct that an accused or party listen to a special
20 hearing by means of an audio link if, in the opinion of the court,
21 it is not desirable for the accused or party to attend court due to
22 the person's health or another reason.
23 (2) If the court directs that the accused or party listen to a special
24 hearing by means of an audio link, the accused or party must be
25 provided with a reasonable opportunity to view a copy of the
26 visual recording of evidence from the special hearing before the
27 evidence is presented to court.
28 (3) A person must not make a copy of, or otherwise reproduce, any
29 audio of a special hearing, or any part of a special hearing,
30 heard by means of an audio link under subsection (1).
31 Penalty for this subsection: a fine of $5 000.
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1 (4) A person must not play, supply or offer to supply any copy of,
2 or reproduction of, any audio of a special hearing, or any part of
3 a special hearing, heard by means of an audio link under
4 subsection (1).
5 Penalty for this subsection: a fine of $5 000.
6 (5) A person must not publish any audio of a special hearing, or any
7 part of a special hearing, heard by means of an audio link under
8 subsection (1).
9 Penalty for this subsection: imprisonment for 12 months and a
10 fine of $100 000.
11 Compare:
12 Evidence Act 1906 s. 106K(3A), (3B), (4A), (4B) and (4C)
13 267. Use of recorded statement or interview at special hearing
14 This Division does not prevent a recorded statement or recorded
15 interview from being presented as the whole or part of a
16 witness's evidence in chief in a special hearing.
17 Compare:
18 Evidence Act 1906 s. 106K(4)
19 268. Admissibility of recording of evidence taken at special
20 hearing
21 (1) A recording of evidence given by a witness at a special hearing
22 is admissible in the proceeding for which it was made, and in
23 any related proceeding, to the same extent as if it were given
24 orally in the proceeding in accordance with the usual rules and
25 practice of the court concerned.
26 (2) If a pre-recording order is made on the ground that the witness
27 is likely to be out of the State at the time of the proceeding,
28 subsection (1) applies only if the court is satisfied at the
29 proceeding that --
30 (a) the witness is not available to give evidence; or
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s. 269
1 (b) the witness is out of the State and is not able to give
2 evidence at the proceeding by means of a video link or
3 an audio link, even if the witness might return at some
4 future time; or
5 (c) the witness is being kept out of the way by a party; or
6 (d) all of the parties consent and the interests of justice do
7 not require the presence of the witness.
8 (3) However, if there is a prospect that a witness referred to in
9 subsection (2)(a) might become available to give evidence, the
10 court need not admit the evidence but may adjourn the hearing
11 of the proceeding.
12 Compare:
13 Evidence Act 1906 s. 106T
14 269. Presentation of recording of evidence
15 (1) The court may give directions as to the manner in which a
16 recording of evidence given by a witness in a special hearing
17 must be presented to the court and the excision of matters from
18 it.
19 (2) Without limiting subsection (1), the court may give any of the
20 following directions --
21 (a) a direction that the recording of evidence be played to
22 the court;
23 (b) a direction that the recording of evidence be tendered to
24 the court;
25 (c) a direction that a transcript of the recording of evidence
26 be tendered to the court.
27 (3) A jury in the proceeding may, with the leave of the court, be
28 given access to a transcript of a recording of evidence.
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Division 6 Pre-recording procedure
s. 270
1 270. Presence of witness not required during presentation of
2 recording of evidence
3 (1) A witness may, but is not required to, be present in the
4 courtroom when a recording of evidence given by the witness is
5 played to the court.
6 (2) Subsection (1) does not prevent the court from directing the
7 witness to leave the courtroom while the recording of evidence
8 is played if the court considers it appropriate to do so in the
9 interests of justice.
10 (3) The court may direct that arrangements be made that enable the
11 witness to view the proceeding from outside the courtroom
12 when the recording of evidence is played, by closed-circuit
13 television or otherwise.
14 (4) The arrangements that enable the witness to view the
15 proceeding from outside the courtroom must ensure that the
16 witness is not visible or audible to anyone in the court, other
17 than the judge.
18 (5) This section does not prevent the court from directing that a
19 witness be visible or audible to the courtroom while a recording
20 of evidence is played if the witness has reached 18 years of age
21 and the court considers it appropriate to do so in the interests of
22 justice.
23 Compare:
24 Evidence Act 1906 s. 106I(1)(b) and 106T(2c)
25 271. Witness may be required to give further evidence
26 (1) A witness who has given evidence in a special hearing may be
27 called to give further evidence in the proceeding, but only with
28 the leave of the court.
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s. 272
1 (2) The court may give leave only if satisfied that --
2 (a) the further evidence is required --
3 (i) to clarify evidence given in the special hearing;
4 or
5 (ii) because of a matter which the party seeking
6 leave could not reasonably have been aware at
7 the time of the special hearing;
8 and
9 (b) it is in the interests of justice to do so.
10 (3) The further evidence must be limited to the matters in relation to
11 which the leave is granted.
12 (4) The further evidence may be given in the absence of the jury (if
13 any) if the court considers it appropriate in the interests of
14 justice.
15 (5) Subsection (1) does not prevent the court from directing the use
16 of a pre-recording procedure, video link separation procedure or
17 screening procedure in respect of the giving of further evidence.
18 Compare:
19 Evidence Act 1906 s. 106T(3) and (4)
20 272. Identification of accused
21 If the evidence of a witness in a criminal proceeding is given in
22 a special hearing, and the identification of an accused is in issue,
23 the witness cannot be required to be in the presence of the
24 accused for that purpose --
25 (a) for any longer than is necessary for that purpose; or
26 (b) before the evidence of the witness (including
27 cross-examination and re-examination) is completed.
28 Compare:
29 Evidence Act 1906 s. 106Q
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Evidence Bill 2024
Part 7 Witness assistance measures
Division 7 Video link separation and screening procedures
s. 273
1 273. Warning to jury
2 A judge in any proceeding before a jury in which the evidence
3 of a witness is given using a pre-recording procedure must
4 instruct the jury that --
5 (a) the procedure is a routine practice of the court; and
6 (b) the jury should not draw an inference as to the guilt of
7 an accused or the culpability of a party from the use of
8 the procedure.
9 Division 7 -- Video link separation and screening procedures
10 274. Application of Division
11 (1) This Division applies despite the Criminal Procedure Act 2004
12 section 88.
13 (2) This Division does not affect the power of a court to order the
14 use of video link or a screening procedure under any other
15 provision of this Act or any other written law.
16 275. Terms used
17 In this Division --
18 excluded party has the meaning given in section 276(1)(b);
19 video link separation order has the meaning given in
20 section 276(1).
21 276. General provisions about video link separation orders
22 (1) A video link separation order is an order of a court under
23 section 277 or 278 directing that the whole or any part of the
24 evidence of a witness in a proceeding be given using a video
25 link separation procedure so that --
26 (a) in a criminal proceeding -- the witness gives the
27 evidence in a separate place from an accused; or
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1 (b) in a civil proceeding -- the witness gives the evidence
2 in a separate place from any party the court considers
3 appropriate to exclude (an excluded party).
4 (2) A video link separation order may be made by a court --
5 (a) on the application of the party proposing to call the
6 witness; or
7 (b) on the court's own initiative.
8 (3) A video link separation order may include any directions the
9 court making the order thinks fit relating to the video link
10 separation procedure, including, but not limited to, the
11 following --
12 (a) the place at which the evidence of the witness must be
13 given, or an accused or an excluded party must remain,
14 while the evidence is given;
15 (b) the persons who may be present in the same room as the
16 witness when the witness's evidence is given;
17 (c) the persons, or classes of persons, who are authorised to
18 have possession of the recording of evidence made when
19 the witness's evidence is given.
20 (4) A video link separation order must not be inconsistent with the
21 requirements for a video link separation procedure specified in
22 this Division.
23 (5) A video link separation order may be varied or revoked by
24 further order of the court made --
25 (a) on the application of a party; or
26 (b) on the court's own initiative.
27 (6) A party to a proceeding must be served with a copy of an
28 application by another party for --
29 (a) a video link separation order; or
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Division 7 Video link separation and screening procedures
s. 277
1 (b) an order varying or revoking a video link separation
2 order.
3 Compare:
4 Evidence Act 1906 s. 106N and 106R(4)
5 277. Circumstances in which video link separation procedure is
6 mandatory
7 (1) A court must make a video link separation order directing that
8 the whole of the evidence of a witness be given using a video
9 link separation procedure --
10 (a) if the proceeding is a criminal proceeding and the
11 witness is a child (other than the accused) when the
12 proceeding commences; or
13 (b) if the proceeding is a child protection proceeding and
14 the witness is the affected child; or
15 (c) if the witness is a special witness in the proceeding
16 (other than the accused); or
17 (d) in any other circumstances specified in the regulations
18 for the purposes of this paragraph.
19 (2) Despite subsection (1), the court may decline to make a video
20 link separation order if --
21 (a) the court dispenses with the use of a video link
22 separation procedure under section 302; or
23 (b) the evidence of the witness is given using a
24 pre-recording procedure; or
25 (c) the court is satisfied that the necessary facilities for a
26 video link separation procedure are not available and
27 cannot reasonably be made available by the court.
28 (3) If a court declines to make a video link separation order under
29 subsection (2)(c), the court must --
30 (a) instead of making the order, direct that the evidence of
31 the witness be given using a screening procedure; and
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s. 278
1 (b) consider whether any other arrangements could be made
2 to support or assist the witness while giving evidence.
3 (4) The court must not decline to make a video link separation order
4 under subsection (2)(c) in the circumstances (if any) specified in
5 the regulations for the purposes of this subsection.
6 (5) A power to specify circumstances under subsection (1)(d) or (4)
7 includes a power to specify circumstances by reference to any
8 of the following --
9 (a) the characteristics of the witness;
10 (b) the type of proceeding;
11 (c) the location of the proceeding.
12 (6) In deciding whether the court is satisfied of the circumstances
13 referred to in subsection (1)(d) or (4), the court may inform
14 itself as it thinks fit.
15 278. Other circumstances in which video link separation
16 procedure may be used
17 (1) A court may make a video link separation order directing that
18 the whole or any part of the evidence of a witness be given
19 using a video link separation procedure --
20 (a) if the witness is an accused in a criminal proceeding in
21 which there is more than 1 accused, and is a child when
22 the proceeding commences; or
23 (b) if the witness is an accused in a criminal proceeding in
24 which there is more than 1 accused, and is a special
25 witness; or
26 (c) in any other circumstances specified in the regulations
27 for the purposes of this paragraph; or
28 (d) in any other circumstances that, in the opinion of the
29 court, justify the use of a video link separation
30 procedure.
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Division 7 Video link separation and screening procedures
s. 279
1 (2) A court must have regard to the interests of justice in deciding
2 whether to make a video link separation order in respect of a
3 witness under this section.
4 (3) A power to specify circumstances under subsection (1)(c)
5 includes a power to specify circumstances by reference to any
6 of the following --
7 (a) the characteristics of the witness;
8 (b) the type of proceeding;
9 (c) the location of the proceeding.
10 (4) In deciding whether the court is satisfied of the circumstances
11 referred to in subsection (1)(c) or (d), the court may inform
12 itself as it thinks fit.
13 (5) This section does not apply if a court is required to make a
14 video link separation order under section 277.
15 279. Access to legal counsel
16 An accused or an excluded party must at all times have the
17 means of communicating with the person's legal counsel while
18 a witness gives evidence using a video link separation
19 procedure.
20 Compare:
21 Evidence Act 1906 s. 106N(3)
22 280. Evidence of witness to be recorded
23 (1) If a witness gives evidence using a video link separation
24 procedure, the evidence must be recorded on a visual recording.
25 (2) A recording of evidence given by a witness using a video link
26 separation procedure is admissible in the proceeding for which
27 the evidence was obtained, and in any related proceeding, to the
28 same extent as if it were given orally in the proceeding in
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s. 281
1 accordance with the usual rules and practice of the court
2 concerned.
3 Compare:
4 Evidence Act 1906 s. 106N(3a) and 106T(1) and (2)
5 281. Use of screening procedure
6 (1) If, instead of making a video link separation order, a court
7 directs that the evidence of the witness be given using a
8 screening procedure, the court must ensure that --
9 (a) the screening procedure does not cause significant
10 hardship to the witness; and
11 (b) the witness is still able to access any person who has
12 been approved by the court to provide support to the
13 witness while giving evidence; and
14 (c) the arrangements for the witness to give evidence are
15 otherwise in the interests of justice.
16 (2) The witness's evidence must be recorded on a visual recording
17 if the necessary facilities are available to do so.
18 (3) A recording of evidence given by a witness while using a
19 screening procedure is admissible in the proceeding for which
20 the evidence was obtained, and in any related proceeding, to the
21 same extent as if it were given orally in the proceeding in
22 accordance with the usual rules and practice of the court
23 concerned.
24 Compare:
25 Evidence Act 1906 s. 106N(4) and (5) and 106T(1) and (2)
26 282. Identification of accused
27 If the evidence of a witness in a criminal proceeding is given
28 using a video link separation procedure or a screening procedure
29 under this Division, and the identification of an accused is in
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Part 7 Witness assistance measures
Division 8 Communication directions
s. 283
1 issue, the witness cannot be required to be in the presence of the
2 accused for that purpose --
3 (a) for any longer than is necessary for that purpose; or
4 (b) before the evidence of the witness (including
5 cross-examination and re-examination) is completed.
6 Compare:
7 Evidence Act 1906 s. 106Q
8 283. Instruction to jury
9 A judge in any proceeding before a jury in which the evidence
10 of a witness is given using a video link separation procedure or
11 a screening procedure under this Division must instruct the jury
12 that --
13 (a) the procedure is a routine practice of the court; and
14 (b) the jury should not draw an inference as to the guilt of
15 an accused or the culpability of a party from the use of
16 the procedure.
17 Compare:
18 Evidence Act 1906 s. 106P
19 Division 8 -- Communication directions
20 284. Term used: communication directions
21 In this Division --
22 communication directions has the meaning given in
23 section 285(1).
24 285. Communication directions relating to witnesses
25 (1) A court may give directions (communication directions) in
26 relation to a witness for the purpose of ensuring that the
27 communication, support or other needs of the witness in a
28 proceeding are met in a manner that is fair and effective.
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Communication directions Division 8
s. 286
1 (2) Without limiting subsection (1), the court may give
2 communication directions relating to any of the following
3 matters --
4 (a) the manner in which a witness must be questioned;
5 (b) the duration of questioning and breaks in questioning;
6 (c) the questions that may, or must not be, put to a witness
7 (including by giving directions about disallowable
8 questions under section 50);
9 (d) if there are more than 2 parties -- the allocation among
10 them of topics about which a witness may be
11 questioned;
12 (e) the use of models, plans, maps or similar aids to
13 question a witness;
14 (f) the cross-examination of a witness;
15 (g) if a party intends to lead evidence that contradicts or
16 challenges the evidence of a witness or that otherwise
17 discredits a witness -- that the party is not obliged to
18 put that evidence in its entirety to the witness in
19 cross-examination.
20 286. Ground rules hearing
21 (1) A court may hold a hearing (a ground rules hearing) for the
22 purposes of --
23 (a) considering the communication, support or other needs
24 of a witness; and
25 (b) deciding whether any communication directions should
26 be made to meet those needs fairly and effectively.
27 (2) A ground rules hearing may be held --
28 (a) on the application of a party; or
29 (b) on the court's own initiative.
30 (3) An application for a ground rules hearing may be made to the
31 court orally or in writing.
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Division 8 Communication directions
s. 287
1 (4) A court may give communication directions in relation to a
2 witness, without holding a ground rules hearing, if --
3 (a) the communication directions have been agreed by the
4 parties; and
5 (b) the court is satisfied that those communication
6 directions are appropriate.
7 287. Timing of ground rules hearing
8 (1) If a ground rules hearing is to be held, it must, if practicable, be
9 held a reasonable period before the commencement of any
10 hearing at which the witness is to give evidence.
11 (2) The court may extend the time for holding the ground rules
12 hearing if the court considers that it is in the interests of justice
13 to do so.
14 (3) The court may extend the time under subsection (2) --
15 (a) before or after the time expires; and
16 (b) more than once.
17 288. Conduct of ground rules hearing
18 (1) The following persons must attend a ground rules hearing --
19 (a) in a criminal proceeding -- a person acting for the
20 prosecution and the legal counsel acting for the accused
21 or, if the accused is unrepresented, the accused;
22 (b) in a civil proceeding -- the legal counsels of the parties
23 or, if a party is unrepresented, the party (other than the
24 affected child in a child protection proceeding).
25 (2) A witness is not required to attend a ground rules hearing.
26 (3) Rules of court may provide for ground rules hearings.
27 289. Other powers of court not affected
28 This Division does not affect any other power of a court to give
29 directions about the questioning of a witness.
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Access to and use of protected recordings Division 9
s. 290
1 Division 9 -- Access to and use of protected recordings
2 290. Terms used
3 In this Division --
4 Director of Public Prosecutions means --
5 (a) the Director of Public Prosecutions appointed under the
6 Director of Public Prosecutions Act 1991 section 5; or
7 (b) a person acting in that office under section 8 of that Act;
8 protected recording means --
9 (a) a visual recording or audio recording of an out-of-court
10 representation made to a police officer of this State,
11 being a representation that may be admitted into
12 evidence under Division 3 (whether or not it has been
13 admitted under that Division); or
14 (b) a recorded statement that is admissible as evidence
15 under Division 4 or obtained for use as evidence under
16 Division 4 (whether or not it has been admitted under
17 that Division); or
18 (c) a recorded interview that is admissible as evidence
19 under Division 5 or made for use as evidence under
20 Division 5 (whether or not it has been admitted under
21 that Division); or
22 (d) a visual recording or audio recording of evidence given
23 under a special procedure for giving evidence.
24 291. Possessing or supplying protected recordings
25 (1) A person must not, without authority --
26 (a) be in possession of any protected recording; or
27 (b) supply or offer to supply any protected recording to any
28 person.
29 Penalty for this subsection: a fine of $5 000.
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Division 9 Access to and use of protected recordings
s. 291
1 (2) A person has authority for the purposes of subsection (1) only if
2 the person is --
3 (a) a police officer acting in the course of the police
4 officer's official duties; or
5 (b) the Director of Public Prosecutions or a person acting
6 under the authority of the Director of Public
7 Prosecutions; or
8 (c) legal counsel acting for or representing the State; or
9 (d) legal counsel for a party to a proceeding to which the
10 protected recording relates, or a person engaged by legal
11 counsel for a party to the proceeding to which the
12 protected recording relates, acting for a purpose
13 connected with the conduct or defence of the
14 proceeding; or
15 (e) a public official acting in good faith for a purpose
16 connected with the person's duties as a public official;
17 or
18 (f) acting as authorised by a court; or
19 (g) acting as authorised by this Act or regulations made for
20 the purposes of this paragraph; or
21 (h) acting as authorised by the Criminal Investigation
22 Act 2006.
23 (3) A person is not entitled to be in possession of any protected
24 recording relating to an offence of which the person is accused
25 and, accordingly, has no authority to possess, supply, or offer to
26 supply, that protected recording.
27 (4) Subsection (3) continues to apply after any prosecution of the
28 offence has been completed or terminated.
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Access to and use of protected recordings Division 9
s. 292
1 (5) This section does not prevent an accused from being in
2 possession of a protected recording that is a recording of
3 evidence given by that accused.
4 Compare:
5 Evidence Act 1906 s. 106MA
6 292. Altering or destroying original protected recording
7 (1) A person must not, without authority, alter or destroy or permit
8 another person to alter or destroy an original version of a
9 protected recording.
10 Penalty for this subsection: a fine of $5 000.
11 (2) A person has authority for the purposes of subsection (1) only if
12 the person is --
13 (a) a public official acting in good faith for a purpose
14 connected with the person's duties as a public official;
15 or
16 (b) acting as authorised by a court; or
17 (c) acting as authorised by this Act or regulations made for
18 the purposes of this paragraph; or
19 (d) acting as authorised by the Criminal Investigation
20 Act 2006.
21 Compare:
22 Evidence Act 1906 s. 106MA
23 293. Altering copy of protected recording
24 A person must not alter a copy of any protected recording unless
25 the person has authority to be in possession of the protected
26 recording.
27 Penalty: a fine of $5 000.
page 225
Evidence Bill 2024
Part 7 Witness assistance measures
Division 9 Access to and use of protected recordings
s. 294
1 294. Copying protected recording
2 (1) A person must not, without authority, copy or permit another
3 person to copy any protected recording.
4 Penalty for this subsection: a fine of $5 000.
5 (2) A person has authority for the purposes of subsection (1) only if
6 the person is --
7 (a) a police officer acting in the course of the police
8 officer's official duties; or
9 (b) the Director of Public Prosecutions or a person acting
10 under the authority of the Director of Public
11 Prosecutions; or
12 (c) legal counsel acting for or representing the State; or
13 (d) a public official acting in good faith for a purpose
14 connected with the person's duties as a public official;
15 or
16 (e) acting as authorised by a court; or
17 (f) acting as authorised by this Act or regulations made for
18 the purposes of this paragraph; or
19 (g) acting as authorised by the Criminal Investigation
20 Act 2006.
21 Compare:
22 Evidence Act 1906 s. 106MA
23 295. Playing protected recordings
24 (1) A person must not, without authority, play any protected
25 recording.
26 Penalty for this subsection: a fine of $5 000.
page 226
Evidence Bill 2024
Witness assistance measures Part 7
Access to and use of protected recordings Division 9
s. 295
1 (2) A person has authority for the purposes of subsection (1) only if
2 the person --
3 (a) plays the protected recording for a purpose connected
4 with the conduct or defence of a proceeding to which the
5 protected recording relates; or
6 (b) is a police officer acting in the course of the police
7 officer's official duties; or
8 (c) is a public official acting in good faith for purposes
9 connected with the person's duties as a public official;
10 or
11 (d) is acting as authorised by a court; or
12 (e) is acting as authorised by this Act or regulations made
13 for the purposes of this paragraph.
14 (3) This section does not authorise --
15 (a) an accused to play any protected recording relating to
16 the proceeding in which the person is accused; or
17 (b) any other person to play, in the presence of the accused,
18 the protected recording for a purpose connected with the
19 conduct or defence of the proceeding unless the person,
20 or an employee or agent of the person, is present with
21 the accused for the entire period during which the
22 recording is played.
23 (4) Subsection (3) does not apply to a protected recording that is a
24 recording of evidence given by the accused if it is that
25 accused --
26 (a) who plays the recording; or
27 (b) in whose presence the recording is played.
28 Compare:
29 Evidence Act 1906 s. 106MA
page 227
Evidence Bill 2024
Part 7 Witness assistance measures
Division 9 Access to and use of protected recordings
s. 296
1 296. Protected recordings may be played for instructional
2 purposes
3 (1) A protected recording may be played to any of the following
4 persons for the purposes of instruction --
5 (a) a police officer or police trainee;
6 (b) an officer of the Commission (as defined in the
7 Corruption, Crime and Misconduct Act 2003
8 section 3(1));
9 (c) a legal practitioner or person studying to be a legal
10 practitioner;
11 (d) a person prescribed by the regulations for the purposes
12 of this section.
13 (2) A protected recording may be played under subsection (1) only
14 if --
15 (a) all proceedings in relation to the subject matter of the
16 protected recording have concluded; and
17 (b) all reasonable measures are taken to prevent the
18 identification of the person being interviewed or giving
19 evidence in the protected recording; and
20 (c) any further requirements specified in the regulations
21 relating to the use or playing of the protected recording
22 for instructional purposes are satisfied.
23 297. Publication of protected recordings prohibited
24 (1) A person must not publish any protected recording except in
25 accordance with the approval of the Supreme Court.
26 Penalty for this subsection: imprisonment for 12 months and a
27 fine of $100 000.
page 228
Evidence Bill 2024
Witness assistance measures Part 7
Access to and use of protected recordings Division 9
s. 298
1 (2) The Supreme Court may approve the publication of a protected
2 recording only if satisfied that exceptional circumstances justify
3 approval being given.
4 Compare:
5 Evidence Act 1906 s. 106MB
6 298. Playing or tendering altered versions of protected
7 recordings in proceedings
8 (1) A party proposing to play or tender any protected recording in a
9 proceeding must notify the court if the protected recording has
10 been altered from the original version of the protected
11 recording.
12 (2) A party proposing to tender a transcript of a protected recording
13 in a proceeding must notify the court if the transcript has been
14 altered from the original version of the protected recording.
15 (3) A protected recording, or a transcript of a protected recording,
16 that has been altered from the original version of the protected
17 recording may be played or tendered to the court only with the
18 leave of the court.
19 Compare:
20 Evidence Act 1906 s. 106HB
21 299. Court may give directions about protected recordings
22 (1) The Supreme Court, the Family Court, the District Court, the
23 Magistrates Court, the Children's Court or any court that admits
24 a protected recording as evidence or directs the use of a special
25 procedure for giving evidence may give directions as to the
26 possession, supply, copying, editing, destruction or playing of a
27 protected recording.
28 (2) A court must not authorise a person to be in possession of a
29 protected recording if the protected recording relates to an
30 offence of which the person is accused.
page 229
Evidence Bill 2024
Part 7 Witness assistance measures
Division 10 Miscellaneous
s. 300
1 (3) Subsection (2) continues to apply after any prosecution of the
2 offence has been completed or terminated.
3 (4) Subsection (2) does not apply to the possession by an accused of
4 a protected recording of evidence given by that accused.
5 Division 10 -- Miscellaneous
6 300. Hearing to consider orders that should be made
7 (1) In any proceeding in which it is likely that the court will be
8 required or asked to do any of the following in relation to a
9 witness, the party who proposes to call the witness concerned
10 must apply for a directions hearing for the purpose of having the
11 matter dealt with before the proceeding --
12 (a) decide whether the witness must be treated as a special
13 witness or should be declared to be a special witness;
14 (b) make any order or direction in relation to an out-of-court
15 representation, recorded statement or recorded interview
16 of the witness;
17 (c) make any order or direction, or give any approval, in
18 relation to a special procedure for giving evidence, as it
19 affects the witness;
20 (d) hold a ground rules hearing in relation to the witness.
21 (2) Rules of court may provide for directions hearings under this
22 section.
23 Compare:
24 Evidence Act 1906 s. 106S
25 301. Disclosure of protected communications in connection with
26 support measures
27 (1) In this section --
28 Department means the department of the Public Service
29 principally assisting in the administration of this Act;
page 230
Evidence Bill 2024
Witness assistance measures Part 7
Miscellaneous Division 10
s. 301
1 Justice document means a document that records any report,
2 opinion, advice, recommendation or correspondence relating to
3 a sexual offence complainant made by an officer or employee
4 of, or person engaged by, the Department in connection with a
5 service offered to witnesses in criminal proceedings or victims
6 of crime.
7 (2) The prosecutor in a criminal proceeding may, without the leave
8 of the court, tender a Justice document in support of the
9 prosecutor's submission at any of the following hearings, even
10 if the document records a protected communication --
11 (a) a hearing to determine whether the sexual offence
12 complainant should be treated as or declared to be a
13 special witness;
14 (b) a hearing to determine whether the court should make
15 any order or direction in relation to a special procedure
16 for giving evidence as it affects the sexual offence
17 complainant.
18 (3) Section 166 does not prevent the disclosure or admission of a
19 Justice document for the purpose of a hearing mentioned in
20 subsection (2).
21 (4) If a Justice document that records a protected communication is
22 admitted for the purpose of a hearing mentioned in
23 subsection (2), section 174 applies in the same way as it applies
24 to the disclosure of a document under Part 4 Division 3.
25 Example for this subsection:
26 The court may make an order suppressing the publication of all or part
27 of the Justice document to protect the safety and welfare of the sexual
28 offence complainant.
29 (5) This section does not affect the application of Part 4 Division 3
30 to the disclosure or admission of a Justice document for the
31 purpose of any other part of the criminal proceeding.
page 231
Evidence Bill 2024
Part 7 Witness assistance measures
Division 10 Miscellaneous
s. 302
1 302. Dispensing with special procedure for giving evidence
2 (1) A court may, by order, dispense with the use of a special
3 procedure for giving evidence if the court is satisfied that the
4 witness is able to give evidence, and consents to giving
5 evidence, without using the special procedure for giving
6 evidence.
7 (2) The court must not make the order unless the court is satisfied
8 of the following matters --
9 (a) that the witness understands their decision and its effect;
10 (b) that the decision was made freely and voluntarily.
11 (3) In deciding whether to make the order, the court may inform
12 itself as it thinks fit.
13 (4) A witness must not be questioned in a proceeding about a
14 decision to give evidence without using a special procedure for
15 giving evidence except by or with the approval of the court for
16 the purposes of satisfying this section.
17 (5) In a criminal proceeding before a jury, the judge, the prosecutor,
18 the accused or the accused's legal counsel must not comment to
19 the jury about a decision by a witness to give evidence without
20 using a special procedure for giving evidence.
21 (6) Subsection (5) does not prevent a judge from directing the jury
22 about a contravention of that subsection by the prosecutor, the
23 accused or the accused's legal counsel if it is in the interests of
24 justice to do so.
25 Compare:
26 Evidence Act 1906 s. 106R(8)
page 232
Evidence Bill 2024
Proof Part 8
Standard of proof Division 1
s. 303
1 Part 8 -- Proof
2 Division 1 -- Standard of proof
3 303. Civil proceeding: standard of proof
4 (1) In a civil proceeding, the court must find the case of a party
5 proved if it is satisfied that the case has been proved on the
6 balance of probabilities.
7 (2) Without limiting the matters that the court may take into
8 account in deciding whether it is satisfied, it must take into
9 account --
10 (a) the nature of the cause of action or defence; and
11 (b) the nature of the subject matter of the proceeding; and
12 (c) the gravity of the matters alleged.
13 Compare:
14 Evidence Act 1995 (Commonwealth) s. 140
15 304. Criminal proceeding: standard of proof
16 (1) In a criminal proceeding, the court must not find the case of the
17 prosecution proved unless it is satisfied that it has been proved
18 beyond reasonable doubt.
19 (2) In a criminal proceeding, the court must find the case of an
20 accused proved if it is satisfied that the case has been proved on
21 the balance of probabilities.
22 Compare:
23 Evidence Act 1995 (Commonwealth) s. 141
24 305. Admissibility of evidence: standard of proof
25 (1) Except as otherwise provided by this Act, in any proceeding the
26 court must find that the facts necessary for deciding any of the
page 233
Evidence Bill 2024
Part 8 Proof
Division 2 Corroboration
s. 306
1 following questions have been proved if it is satisfied that they
2 have been proved on the balance of probabilities --
3 (a) a question whether evidence should be admitted or not
4 admitted, whether in the exercise of a discretion or not;
5 (b) any other question arising under this Act.
6 (2) In determining whether it is satisfied, the matters that the court
7 must take into account include --
8 (a) the importance of the evidence in the proceeding; and
9 (b) the gravity of the matters alleged in relation to the
10 question.
11 Compare:
12 Evidence Act 1995 (Commonwealth) s. 142
13 Division 2 -- Corroboration
14 306. Corroboration not required
15 (1) It is not necessary that evidence on which a party relies be
16 corroborated.
17 (2) Despite any rule, whether of law or practice, to the contrary, if
18 there is a jury, the judge must not --
19 (a) warn the jury that it is dangerous to act on
20 uncorroborated evidence or give a warning to the same
21 or similar effect; or
22 (b) direct the jury regarding the absence of corroboration.
23 Compare:
24 Evidence Act 1906 s. 106D
25 Evidence Act 1995 (Commonwealth) s. 164
page 234
Evidence Bill 2024
Proof Part 8
Warnings and information Division 3
s. 307
1 Division 3 -- Warnings and information
2 307. Unreliable evidence
3 (1) This section applies to evidence of a kind that may be
4 unreliable, including the following kinds of evidence --
5 (a) evidence in relation to which Part 3 Division 2 or 4
6 applies;
7 (b) identification evidence;
8 (c) evidence given in a criminal proceeding by a witness,
9 being a witness who might reasonably be supposed to
10 have been criminally concerned in the events giving rise
11 to the proceeding;
12 (d) evidence given in a criminal proceeding by a witness
13 who is a prison informer;
14 (e) oral evidence of questioning by an investigating official
15 of an accused that is questioning recorded in writing that
16 has not been signed, or otherwise acknowledged in
17 writing, by the accused;
18 (f) in a proceeding against the estate of a deceased
19 person -- evidence adduced by or on behalf of a person
20 seeking relief in the proceeding that is evidence about a
21 matter about which the deceased person could have
22 given evidence if the deceased person were alive.
23 (2) In a proceeding before a jury, the judge must do the following if
24 a party requests it --
25 (a) warn the jury that the evidence may be unreliable;
26 (b) inform the jury of matters that may cause it to be
27 unreliable;
28 (c) warn the jury of the need for caution in determining
29 whether to accept the evidence and the weight to be
30 given to it.
31 (3) The judge need not comply with subsection (2) if satisfied there
32 is good reason for not complying.
page 235
Evidence Bill 2024
Part 8 Proof
Division 3 Warnings and information
s. 308
1 (4) It is not necessary that a particular form of words be used in
2 giving the warning or information.
3 (5) This section does not affect any other power of the judge to give
4 a warning to, or to inform, the jury.
5 Compare:
6 Evidence Act 1995 (Commonwealth) s. 165
7 308. Warnings about evidence given by children
8 (1) A judge in any proceeding in which evidence is given by a child
9 before a jury must not do any of the following --
10 (a) warn the jury, or suggest to the jury, that children as a
11 class are unreliable witnesses;
12 (b) warn the jury, or suggest to the jury, that the evidence of
13 children as a class is inherently less credible or reliable,
14 or requires more careful scrutiny, than the evidence of
15 adults;
16 (c) give a warning, or make a suggestion, to the jury about
17 the unreliability of the particular child's evidence solely
18 on account of the age of the child.
19 (2) Subsection (1) does not prevent a judge from --
20 (a) informing the jury that the evidence of the particular
21 child may be unreliable and the reasons why it may be
22 unreliable; and
23 (b) warning or informing the jury of the need for caution in
24 determining whether to accept the evidence of the
25 particular child and the weight to be given to it.
26 (3) A judge may exercise the power conferred by subsection (2)
27 only if --
28 (a) a party requests it; and
29 (b) the party satisfies the court that there are circumstances
30 (other than solely the age of the child) particular to the
31 child that affect the reliability of the child's evidence
page 236
Evidence Bill 2024
Proof Part 8
Warnings and information Division 3
s. 309
1 and that warrant the giving of a warning or the
2 information.
3 (4) This section does not affect any other power of a judge to give a
4 warning to, or to inform, the jury.
5 Compare:
6 Evidence Act 1995 (Commonwealth) s. 165A
7 309. Warnings about delays causing forensic disadvantage
8 (1) In this section --
9 relevant delay includes --
10 (a) a delay in making a complaint about an offence; and
11 (b) the elapse of time between the commission of an offence
12 and the trial of an accused for the offence.
13 (2) A rule of law or practice that requires a judge in a criminal
14 proceeding to give a warning of a kind known as a Longman
15 warning is abolished.
16 Note for this subsection:
17 See Longman v The Queen (1989) 168 CLR 79.
18 (3) If, on application by an accused in a criminal proceeding before
19 a jury, the court is satisfied that the accused has suffered a
20 significant forensic disadvantage because of a relevant delay,
21 the judge must --
22 (a) explain to the jury the nature of the forensic
23 disadvantage; and
24 (b) direct that the jury must take the forensic disadvantage
25 into account when scrutinising the evidence.
26 (4) The judge need not comply with subsection (3) if satisfied there
27 is good reason for not complying.
28 (5) The mere fact of a delay is not sufficient to establish a
29 significant forensic disadvantage.
page 237
Evidence Bill 2024
Part 8 Proof
Division 3 Warnings and information
s. 310
1 (6) An explanation or direction under subsection (3) --
2 (a) must be specific to the circumstances of the particular
3 case; and
4 (b) must explain to the jury that the forensic disadvantage
5 suffered by the accused was not merely due to the delay;
6 and
7 (c) must not take the form of a warning; and
8 (d) must not warn the jury, or suggest to the jury, that
9 because of the delay or the forensic disadvantage
10 suffered by the accused --
11 (i) it is dangerous or unsafe to convict; or
12 (ii) evidence of a complainant should be scrutinised
13 with great care.
14 (7) This section does not affect any other power of a judge to give a
15 warning to, or to inform, the jury.
16 310. Prohibited directions about delays in complaint about sexual
17 and family violence offences
18 (1) In any criminal proceeding before a jury for a sexual offence or
19 a family violence offence, if evidence is adduced that suggests
20 that a complainant delayed in making a complaint about the
21 offence or failed to make a complaint about the offence, there is
22 no requirement that the judge warn or direct the jury that the
23 delay or failure affects the credibility of the complainant.
24 (2) A judge must not warn the jury, direct the jury or otherwise
25 suggest to the jury that a delay in making a complaint or a
26 failure to make a complaint about a sexual offence or a family
27 violence offence affects the credibility of the complainant
28 except as provided for by subsection (3).
29 (3) A judge may warn or direct a jury that a delay in making a
30 complaint or a failure to make a complaint affects the credibility
31 of a complainant if --
32 (a) the accused requests the warning or direction; and
page 238
Evidence Bill 2024
Proof Part 8
Warnings and information Division 3
s. 311
1 (b) the court is satisfied that the warning or direction is
2 justified in the particular circumstances of the case.
3 (4) In giving any warning or direction under subsection (3), the
4 judge must not do any of the following --
5 (a) warn the jury, or suggest to the jury, that it is dangerous
6 or unsafe to convict because of the delay in making, or
7 failure to make, a complaint;
8 (b) warn the jury, or suggest to the jury, that because of the
9 delay in making, or failure to make, a complaint, the
10 evidence of the complainant should be scrutinised with
11 great care.
12 (5) This section does not affect any other power of a judge to give a
13 warning to, or to inform, the jury.
14 311. Required direction for delays in complaint about sexual and
15 family violence offences
16 (1) In a criminal proceeding before a jury for a sexual offence or a
17 family violence offence, the judge must give the jury a direction
18 under this section --
19 (a) if the judge considers that there is likely to be evidence
20 adduced in the trial that suggests that the complainant
21 delayed in making a complaint or did not make a
22 complaint about the offence; and
23 (b) if at any other time evidence is adduced in the trial or a
24 comment is made to the jury that suggests that the
25 complainant delayed in making a complaint or did not
26 make a complaint about the offence.
27 (2) If subsection (1)(a) applies, the direction must be given before
28 the evidence is adduced and may be given before any evidence
29 is adduced in the trial.
30 (3) If subsection (1)(b) applies, the direction must be given as soon
31 as practicable.
page 239
Evidence Bill 2024
Part 8 Proof
Division 4 Requests between parties relating to evidence
s. 312
1 (4) The judge must direct the jury that experience shows that --
2 (a) people may react differently to sexual offences or family
3 violence (as the case requires) and there is no typical,
4 proper or normal response to a sexual offence or family
5 violence; and
6 (b) some people may complain immediately to the first
7 person they see, while others may not complain for
8 some time and others may never make a complaint; and
9 (c) delay in making a complaint about a sexual offence or
10 family violence is a common occurrence.
11 (5) In the case of family violence, the judge may also include in the
12 direction any matter that could be included in a direction on
13 family violence under section 144(1)(b), and section 144(3)
14 applies in relation to that part of the direction in the same way
15 as it applies to a direction on family violence.
16 (6) The judge may repeat a direction under this section at any time
17 during the criminal proceeding.
18 (7) This section does not affect any other power of a judge to give a
19 warning to, or to inform, the jury.
20 Compare:
21 Evidence Act 1906 s. 36BD
22 Division 4 -- Requests between parties relating to evidence
23 312. Application of Division
24 This Division applies to a civil proceeding.
25 313. Term used: request
26 In this Division --
27 request means a request that a party (the requesting party)
28 makes to another party to do 1 or more of the following --
29 (a) to produce to the requesting party the whole or a part of
30 a specified document or thing;
page 240
Evidence Bill 2024
Proof Part 8
Requests between parties relating to evidence Division 4
s. 314
1 (b) to permit the requesting party, adequately and in an
2 appropriate way, to examine, test or copy the whole or a
3 part of a specified document or thing;
4 (c) to call as a witness a specified person believed to be
5 concerned in the production or maintenance of a
6 specified document or thing;
7 (d) to call as a witness a specified person in whose
8 possession or under whose control a specified document
9 or thing is believed to be or to have been at any time;
10 (e) in relation to a document of a kind referred to in
11 section 6(1)(b) or (c) -- to permit the requesting party,
12 adequately and in an appropriate way, to examine and
13 test the document and the manner in which it was
14 produced and has been kept;
15 (f) in relation to evidence of a previous representation -- to
16 call as a witness the person who made the previous
17 representation;
18 (g) in relation to evidence that a person has been convicted
19 of an offence, being evidence that can be admitted or
20 used in the proceeding under Part 3 Division 5 -- to call
21 as a witness a person who gave evidence in the
22 proceeding in which the person was convicted of the
23 offence.
24 Compare:
25 Evidence Act 1995 (Commonwealth) s. 166
26 314. Requests may be made about certain matters
27 A party may make a reasonable request to another party for the
28 purpose of determining a question that relates to any of the
29 following --
30 (a) a previous representation;
31 (b) evidence of a conviction of a person for an offence;
page 241
Evidence Bill 2024
Part 8 Proof
Division 4 Requests between parties relating to evidence
s. 315
1 (c) the authenticity, identity or admissibility of a document
2 or thing.
3 Compare:
4 Evidence Act 1995 (Commonwealth) s. 167
5 315. Time limits for making requests
6 (1) If a party has given to another party written notice of its
7 intention to adduce evidence of a previous representation, the
8 other party may make a request to the party relating to the
9 representation only if the request is made within 21 days after
10 the notice was given.
11 (2) Despite subsection (1), the court may give the other party leave
12 to make a request relating to the representation after the end of
13 the 21-day period if it is satisfied that there is good reason to do
14 so.
15 (3) If a party has given to another party written notice of its
16 intention to adduce evidence of a person's conviction of an
17 offence in order to prove a fact in issue, the other party may
18 make a request relating to evidence of the conviction only if the
19 request is made within 21 days after the notice was given.
20 (4) Despite subsection (3), the court may give the other party leave
21 to make a request relating to evidence of the conviction after the
22 end of the 21-day period if it is satisfied that there is good
23 reason to do so.
24 (5) If a party has served on another party a copy of a document that
25 it intends to tender in evidence, the other party may make a
26 request relating to the document only if the request is made
27 within 21 days after service of the copy.
28 (6) If the copy of the document served under subsection (5) is
29 accompanied by, or has endorsed on it, a notice stating that the
30 document is to be tendered to prove the contents of another
31 document, the other party may make a request relating to the
page 242
Evidence Bill 2024
Proof Part 8
Requests between parties relating to evidence Division 4
s. 316
1 other document only if the request is made within 21 days after
2 service of the copy.
3 (7) Despite subsections (5) and (6), the court may give the other
4 party leave to make a request relating to the document, or other
5 document, after the end of the 21-day period if it is satisfied that
6 there is good reason to do so.
7 (8) A notice required to be given under this section must be given
8 in accordance with any regulations or rules of court made for
9 the purposes of this section.
10 Compare:
11 Evidence Act 1995 (Commonwealth) s. 168
12 316. Failure or refusal to comply with requests
13 (1) If a party has, without reasonable cause, failed or refused to
14 comply with a request, the court may, on application by the
15 other party, make 1 or more of the following orders --
16 (a) an order directing the party to comply with the request;
17 (b) an order that the party produce a specified document or
18 thing, or call as a witness a specified person;
19 (c) an order that the evidence in relation to which the
20 request was made must not be admitted in evidence;
21 (d) any order with respect to adjournment or costs as is just.
22 (2) If the party has, within a reasonable time after receiving the
23 request, informed the other party that it refuses to comply with
24 the request, any application under subsection (1) by the other
25 party must be made within a reasonable time after being
26 informed.
27 (3) The court may, on application, direct that evidence in relation to
28 which a request was made must not be admitted in evidence if
29 an order made by it under subsection (1)(a) or (b) is not
30 complied with.
page 243
Evidence Bill 2024
Part 8 Proof
Division 4 Requests between parties relating to evidence
s. 316
1 (4) Without limiting the circumstances that may constitute
2 reasonable cause for a party to fail to comply with a request, it
3 is reasonable cause to fail to comply with a request if --
4 (a) the document or thing to be produced is not available to
5 the party; or
6 (b) the existence and contents of the document are not in
7 issue in the proceeding in which evidence of the
8 document is proposed to be adduced; or
9 (c) the person to be called as a witness is not available.
10 (5) Without limiting the matters that the court may take into
11 account in relation to the exercise of a power under
12 subsection (1), it must take into account --
13 (a) the importance in the proceeding of the evidence in
14 relation to which the request was made; and
15 (b) whether there is likely to be a dispute about the matter to
16 which the evidence relates; and
17 (c) whether there is a reasonable doubt as to the authenticity
18 or accuracy of the evidence that is, or the document the
19 contents of which are, sought to be proved; and
20 (d) whether there is a reasonable doubt as to the authenticity
21 of the document or thing that is sought to be tendered;
22 and
23 (e) if the request relates to evidence of a previous
24 representation -- whether there is a reasonable doubt as
25 to the accuracy of the representation or of the evidence
26 on which it was based; and
27 (f) if the request relates to evidence that a person has been
28 convicted of an offence and the request is to call as a
29 witness a person who gave evidence in the proceeding in
30 which the person was convicted -- whether another
31 person is available to give evidence about the conviction
32 or the facts that were in issue in the proceeding in which
33 the conviction was obtained; and
page 244
Evidence Bill 2024
Proof Part 8
Requests between parties relating to evidence Division 4
s. 316
1 (g) whether compliance with the request would involve
2 undue expense or delay or would not be reasonably
3 practicable; and
4 (h) whether compliance with the request would involve an
5 unwarranted breach of the privacy of a person or cause
6 distress, humiliation or embarrassment to a person; and
7 (i) the nature of the proceeding.
8 Compare:
9 Evidence Act 1995 (Commonwealth) s. 169
page 245
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 1 Matters of common knowledge
s. 317
1 Part 9 -- Judicial notice and facilitation of proof
2 Division 1 -- Matters of common knowledge
3 317. Judicial notice to be taken of matters of common knowledge
4 (1) Proof is not required about knowledge that is not reasonably
5 open to question and that is --
6 (a) common knowledge in the locality in which the
7 proceeding is being held or generally; or
8 (b) capable of verification by reference to a document the
9 authority of which cannot reasonably be questioned.
10 (2) The judge may acquire knowledge of the kind referred to in
11 subsection (1) in any way the judge thinks fit.
12 (3) The court (including, if there is a jury, the jury) must take
13 knowledge of the kind referred to in subsection (1) into account.
14 (4) The judge must give a party an opportunity to make
15 submissions, and to refer to relevant information, relating to the
16 acquiring or taking into account of knowledge of the kind
17 referred to in subsection (1) as is necessary to ensure that the
18 party is not unfairly prejudiced.
19 (5) This section does not exclude the application of the principles
20 and rules of common law and equity relating to the effect of a
21 certificate given by or on behalf of the Crown with respect to a
22 matter of international affairs.
23 Compare:
24 Evidence Act 1995 (Commonwealth) s. 144 and 145
page 246
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of laws Division 2
s. 318
1 Division 2 -- Proof of laws
2 318. Judicial notice to be taken of Australian laws
3 (1) Proof is not required about the provisions and coming into
4 operation (in whole or in part) of --
5 (a) a Commonwealth Act, a State Act, an Act or Ordinance
6 of a Territory or an Imperial Act in force in Australia; or
7 (b) a regulation, rule or by-law made, or purporting to be
8 made, under such an Act or Ordinance; or
9 (c) a proclamation or order of the Governor-General, the
10 Governor of a State or the Administrator or Executive of
11 a Territory made, or purporting to be made, under such
12 an Act or Ordinance; or
13 (d) an instrument of a legislative character (including rules
14 of court) made, or purporting to be made, under such an
15 Act or Ordinance, being an instrument that is required
16 by or under a law to be published, or the making of
17 which is required by or under a law to be notified, in any
18 government or official gazette (by whatever name
19 called) or any government or official website.
20 (2) A judge may inform themselves about any matter referred to in
21 subsection (1) in any way that the judge thinks fit.
22 (3) A reference in this section to an Act, being an Act of an
23 Australian Parliament, includes a private Act passed by that
24 Parliament.
25 (4) This section does not exclude the application of the principles
26 and rules of common law and equity relating to the effect of a
27 certificate given by or on behalf of the Crown with respect to a
28 matter of international affairs.
page 247
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 2 Proof of laws
s. 319
1 (5) This section extends to a proceeding before a person acting
2 judicially.
3 Compare:
4 Evidence Act 1995 (Commonwealth) s. 143 and 145
5 319. Proof of laws of foreign countries
6 (1) Evidence of a statute, proclamation, treaty or act of state of a
7 foreign country may be adduced in a proceeding by
8 producing --
9 (a) a document, containing the statute, proclamation, treaty
10 or act of state, that purports to have been printed or
11 published by the government or official printer of the
12 country or by authority of the government or
13 administration of the country; or
14 (b) a document, containing the statute, proclamation, treaty
15 or act of state, that appears to the court to be a reliable
16 source of information; or
17 (c) a document that is or would be used in the courts of the
18 country to inform the courts about, or to prove, the
19 statute, proclamation, treaty or act of state; or
20 (d) a copy of the statute, proclamation, treaty or act of state
21 that is proved to be an examined copy.
22 (2) A reference in this section to a statute of a foreign country
23 includes the following --
24 (a) a regulation, rule or by-law of the foreign country;
25 (b) an instrument of a legislative character (including rules
26 of court) made under a statute of the foreign country.
27 Compare:
28 Evidence Act 1995 (Commonwealth) s. 174
page 248
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of laws Division 2
s. 320
1 320. Evidence of law reports of foreign countries
2 (1) Evidence of the unwritten or common law of a foreign country
3 may be adduced by producing a document containing reports of
4 judgments of courts of the country if the document is or would
5 be used in the courts of the country to inform the courts about
6 the unwritten or common law of the country.
7 (2) Evidence of the interpretation of a statute of a foreign country
8 may be adduced by producing a document containing reports of
9 judgments of courts of the country if the document is or would
10 be used in the courts of the country to inform the courts about
11 the interpretation of the statute.
12 (3) The court may, but is not required to, receive as evidence of the
13 unwritten or common law of a foreign country, or of the
14 interpretation of a statute of a foreign country, any treatise or
15 explanation relating to that law contained in a text book or other
16 published document about the laws of that foreign country.
17 (4) A reference in this section to a statute of a foreign country
18 includes the following --
19 (a) a regulation, rule or by-law of the foreign country;
20 (b) an instrument of a legislative character (including rules
21 of court) made under a statute of the foreign country.
22 Compare:
23 Evidence Act 1906 s. 71
24 Evidence Act 1995 (Commonwealth) s. 175
25 321. Questions of foreign law to be decided by judge
26 If, in a proceeding in which there is a jury, it is necessary to
27 ascertain the law of another country that is applicable to the
28 facts of the case, any question as to the effect of the evidence
29 adduced with respect to that law must be decided by the judge
30 alone.
31 Compare:
32 Evidence Act 1995 (Commonwealth) s. 176
page 249
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 3 Proof of public documents and other official matters
s. 322
1 Division 3 -- Proof of public documents and other official
2 matters
3 322. Presumption as to authenticity of official publications
4 (1) It is presumed, unless the contrary is proved, that a document
5 that purports to be any of the following is what it purports to be
6 and was published on the day on which it purports to have been
7 published --
8 (a) a government or official gazette (by whatever name
9 called) of this State, the Commonwealth, another State,
10 a Territory or a foreign country;
11 (b) a document printed or published by the Government
12 Printer or by the government or official printer of the
13 Commonwealth, another State or a Territory;
14 (c) a document printed or published by authority of the
15 government or administration of this State, the
16 Commonwealth, another State, a Territory or a foreign
17 country.
18 (2) This section extends to a proceeding before a person acting
19 judicially.
20 Compare:
21 Evidence Act 1995 (Commonwealth) s. 153
22 323. Presumption as to regularity of acts notified in official
23 publications
24 (1) If there is produced to a court a document to which this section
25 applies, and the doing of any of the following acts is notified or
26 published in the document, it is presumed, unless the contrary is
27 proved, that the act was duly done and, if the day on which the
28 act was done appears in the document, that it was done on that
29 day --
30 (a) an act of the Governor-General or of the Governor of a
31 State or the Administrator of a Territory;
page 250
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of public documents and other official matters Division 3
s. 324
1 (b) an act of a person authorised or empowered to do the act
2 by an Australian law or a law of a foreign country.
3 (2) This section applies to the following documents --
4 (a) a copy of a government or official gazette (by whatever
5 name called) of this State, the Commonwealth, another
6 State, a Territory or a foreign country;
7 (b) a document that purports to have been printed or
8 published by the Government Printer or by the
9 government or official printer of the Commonwealth,
10 another State or a Territory;
11 (c) a document that purports to have been printed or
12 published by authority of the government or
13 administration of this State, the Commonwealth, another
14 State, a Territory or a foreign country.
15 (3) This section extends to a proceeding before a person acting
16 judicially.
17 Compare:
18 Evidence Act 1995 (Commonwealth) s. 153
19 324. Presumption as to authenticity of Parliamentary documents
20 (1) It is presumed, unless the contrary is proved, that a document
21 purporting to have been printed or published by authority of an
22 Australian Parliament, a House of an Australian Parliament, a
23 committee of a House of an Australian Parliament or a
24 committee of an Australian Parliament --
25 (a) is what it purports to be; and
26 (b) was published on the day on which it purports to have
27 been published.
28 (2) This section extends to a proceeding before a person acting
29 judicially.
30 Compare:
31 Evidence Act 1995 (Commonwealth) s. 154
page 251
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 3 Proof of public documents and other official matters
s. 325
1 325. Presumption as to authenticity of Commonwealth records
2 and public documents
3 (1) In this section --
4 Commonwealth record has the meaning given in the Evidence
5 Act 1995 (Commonwealth) Dictionary Part 1.
6 (2) Evidence of a Commonwealth record or of a public document of
7 this State, another State or a Territory may be adduced by
8 producing a document that --
9 (a) purports to be a Commonwealth record or public
10 document and to be signed or sealed by --
11 (i) a Minister of the Commonwealth, or a Minister
12 of this or another State or a Territory, as the case
13 requires; or
14 (ii) a person who might reasonably be supposed to
15 have custody of the record or document;
16 or
17 (b) purports to be a copy of or extract from the record or
18 document that is certified to be a true copy or extract
19 by --
20 (i) a Minister of the Commonwealth, or a Minister
21 of this or another State or a Territory, as the case
22 requires; or
23 (ii) a person who might reasonably be supposed to
24 have custody of the record or document.
25 (3) If the document is produced, it is presumed, unless evidence
26 that is sufficient to raise doubt about the presumption is
27 adduced, that --
28 (a) the document is the record, public document, copy or
29 extract that it purports to be; and
30 (b) the Minister of the Commonwealth, the Minister of this
31 or another State or a Territory or person signed or sealed
page 252
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of public documents and other official matters Division 3
s. 326
1 the record or document, or certified the copy or extract
2 as a true copy or extract, as the case requires.
3 (4) This section extends to a proceeding before a person acting
4 judicially.
5 Compare:
6 Evidence Act 1995 (Commonwealth) s. 155
7 326. Presumption as to authenticity of copies, extracts and
8 summaries of public documents
9 (1) A document that purports to be a copy of, or an extract from or
10 summary of, a public document is presumed, unless the contrary
11 is proved, to be a copy of the public document, or an extract
12 from or summary of the public document, if it purports to have
13 been --
14 (a) sealed with the seal of a person who, or a body that,
15 might reasonably be supposed to have the custody of the
16 public document; or
17 (b) certified as a copy, extract or summary by a person who
18 might reasonably be supposed to have custody of the
19 public document.
20 (2) If an officer entrusted with the custody of a public document is
21 required by a court to produce the public document, it is
22 sufficient compliance with the requirement for the officer to
23 produce a copy of, or extract from, the public document if it
24 purports to be signed and certified by the officer as a true copy
25 or extract.
26 (3) It is sufficient production of a copy or extract for the purposes
27 of subsection (2) if the officer sends it by prepaid post, or causes
28 it to be delivered, to --
29 (a) the proper officer of the court in which it is to be
30 produced; or
31 (b) the person before whom it is to be produced.
page 253
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 3 Proof of public documents and other official matters
s. 327
1 (4) The court before which a copy or extract is produced under
2 subsection (2) may direct the officer to produce the original
3 public document.
4 (5) This section extends to a proceeding before a person acting
5 judicially.
6 Compare:
7 Evidence Act 1995 (Commonwealth) s. 156
8 327. Presumption as to authenticity of official seals and
9 signatures
10 (1) In this section --
11 office holder means --
12 (a) the Sovereign; or
13 (b) the Governor-General; or
14 (c) the Governor of a State; or
15 (d) the Administrator of a Territory; or
16 (e) a person holding any other office under an Australian
17 law or a law of a foreign country.
18 (2) If the imprint of a seal appears on a document and purports to be
19 the imprint of any of the following, it is presumed, unless the
20 contrary is proved, that the imprint is the imprint of that seal,
21 and the document was duly sealed as it purports to have been
22 sealed --
23 (a) a Royal Great Seal;
24 (b) the Great Seal of Australia;
25 (c) another seal of the Commonwealth;
26 (d) a seal of a State, a Territory or a foreign country;
27 (e) the seal of a body (including a court or a tribunal), or a
28 body corporate, established by or under Royal Charter
29 or by an Australian law or the law of a foreign country.
page 254
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of public documents and other official matters Division 3
s. 328
1 (3) If the imprint of a seal appears on a document and purports to be
2 the imprint of the seal of an office holder, it is presumed, unless
3 the contrary is proved, that --
4 (a) the imprint is the imprint of that seal; and
5 (b) the document was duly sealed by the office holder
6 acting in the office holder's official capacity; and
7 (c) the office holder held the relevant office when the
8 document was sealed.
9 (4) If a document purports to have been signed by an office holder
10 in the office holder's official capacity, it is presumed, unless the
11 contrary is proved, that --
12 (a) the document was signed by the office holder acting in
13 that capacity; and
14 (b) the office holder held the relevant office when the
15 document was signed.
16 (5) This section extends to a proceeding before a person acting
17 judicially.
18 Compare:
19 Evidence Act 1995 (Commonwealth) s. 150 and 151
20 328. Proof of public documents of other States or Territories
21 (1) A public document, or a certified copy of a public document, of
22 another State or a Territory that purports to be sealed, or signed
23 and sealed, or signed alone, as directed by the law of that State
24 or Territory and that is admissible for a purpose in that State or
25 Territory under the law of that State or Territory is admissible in
26 evidence to the same extent and for that purpose in this State --
27 (a) without proof of the seal or signature or of the official
28 character of the person appearing to have signed the
29 document; and
30 (b) without further proof in every case in which the original
31 document could have been received in evidence.
page 255
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 3 Proof of public documents and other official matters
s. 329
1 (2) A public document of another State or a Territory that is
2 admissible in evidence for any purpose in that State or Territory
3 under the law of that State or Territory without proof of the
4 following matters is admissible in evidence to the same extent
5 and for any purpose in this State without proof of those
6 matters --
7 (a) the seal or signature authenticating the document;
8 (b) the judicial or official character of the person appearing
9 to have signed the document.
10 (3) This section only applies to documents that are public records of
11 another State or a Territory.
12 (4) This section extends to a proceeding before a person acting
13 judicially.
14 Compare:
15 Evidence Act 1995 (Commonwealth) s. 158
16 329. Proof of public documents relating to judgments, acts and
17 processes of courts
18 (1) Evidence of a public document that is a judgment (including
19 reasons for judgment), act or other process of an Australian
20 court or a foreign court, or that is a document lodged with an
21 Australian court or a foreign court, may be adduced by
22 producing a document that purports to be a copy of the public
23 document and that --
24 (a) is proved to be an examined copy; or
25 (b) purports to be sealed with the seal of that court; or
26 (c) purports to be signed by a judge, magistrate, registrar or
27 other proper officer of that court.
28 (2) This section extends to a proceeding before a person acting
29 judicially.
30 Compare:
31 Evidence Act 1995 (Commonwealth) s. 157
page 256
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of other matters relating to documents and things Division 4
s. 330
1 330. Proof of official statistics
2 (1) In this section --
3 Australian Statistician --
4 (a) means the Australian Statistician referred to in the
5 Australian Bureau of Statistics Act 1975
6 (Commonwealth) section 5(2); and
7 (b) includes any person to whom the powers of the
8 Australian Statistician under the Census and Statistics
9 Act 1905 (Commonwealth) section 12 have been
10 delegated.
11 (2) A document containing statistics or abstracts is evidence that
12 those statistics or abstracts were compiled and analysed by the
13 Australian Statistician under the Census and Statistics Act 1905
14 (Commonwealth) if the document purports --
15 (a) to be published by the Australian Statistician; and
16 (b) to contain statistics or abstracts compiled and analysed
17 by the Australian Statistician under the Census and
18 Statistics Act 1905 (Commonwealth).
19 (3) This section extends to a proceeding before a person acting
20 judicially.
21 Compare:
22 Evidence Act 1995 (Commonwealth) s. 159
23 Division 4 -- Proof of other matters relating to documents and
24 things
25 331. Presumption relating to documents and things produced by
26 processes and devices
27 (1) This section applies to a document or thing --
28 (a) that is produced wholly or partly by a device or process;
29 and
page 257
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 4 Proof of other matters relating to documents and things
s. 332
1 (b) that is tendered by a party who asserts that, in producing
2 the document or thing, the device or process has
3 produced a particular outcome.
4 (2) If it is reasonably open to find that the device or process is one
5 that, or is of a kind that, if properly used, ordinarily produces
6 that outcome, it is presumed (unless evidence sufficient to raise
7 doubt about the presumption is adduced) that, in producing the
8 document or thing on the occasion in question, the device or
9 process produced that outcome.
10 Example for this section:
11 It would not be necessary to call evidence to prove that a photocopier
12 normally produced complete copies of documents and that it was
13 working properly when it was used to photocopy a particular document.
14 Compare:
15 Evidence Act 1995 (Commonwealth) s. 146
16 332. Presumption relating to business documents produced by
17 processes and devices
18 (1) This section applies to a document --
19 (a) that is produced wholly or partly by a device or process;
20 and
21 (b) that is tendered by a party who asserts that, in producing
22 the document, the device or process has produced a
23 particular outcome.
24 (2) It is presumed (unless evidence sufficient to raise doubt about
25 the presumption is adduced) that, in producing the document on
26 the occasion in question, the device or process produced that
27 outcome if --
28 (a) the document is, or was at the time it was produced, part
29 of the records of, or kept for the purposes of, a business
30 (whether or not the business is still in existence); and
31 (b) the device or process is or was at that time used for the
32 purposes of the business.
page 258
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of other matters relating to documents and things Division 4
s. 333
1 (3) Subsection (2) does not apply to the contents of a document that
2 was produced --
3 (a) for the purpose of conducting, or for or in contemplation
4 of or in connection with, an Australian or overseas
5 proceeding; or
6 (b) in connection with an investigation relating or leading to
7 a criminal proceeding.
8 Compare:
9 Evidence Act 1995 (Commonwealth) s. 147
10 333. Findings about accuracy of documents produced by devices
11 and processes
12 (1) This section applies to a document that is tendered by a party
13 who asserts that the document is admissible as evidence of the
14 contents of another document because --
15 (a) the document is a copy or accurate reproduction of the
16 other document; and
17 (b) the document has been produced by a device that
18 reproduces the contents of documents or has been made
19 by any other process or in any other way.
20 (2) In making a finding about whether the document is a copy or
21 accurate reproduction of another document, the court is not
22 bound by the rules of evidence and may make that finding --
23 (a) based on its own knowledge about the nature and
24 reliability of the device or process by which, or way in
25 which, the document was produced; or
26 (b) based on evidence of a person with knowledge and
27 experience of the device or process by which, or way in
28 which, the copy or reproduction was made; or
29 (c) based on evidence of a person who has compared the
30 contents of both documents and found them to be
31 identical; or
page 259
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 4 Proof of other matters relating to documents and things
s. 334
1 (d) on any other basis it considers appropriate in the
2 circumstances.
3 (3) The court must state the reason for making a finding that the
4 document is or is not a copy or accurate reproduction of another
5 document if requested to do so by a party to the proceeding.
6 (4) If a document is made by a device or process that is prescribed
7 by the regulations for the purposes of this subsection, the device
8 or process is presumed to produce a copy or accurate
9 reproduction of the document purportedly copied or reproduced,
10 unless the contrary is proved.
11 (5) This section does not apply to or in respect of a copy of a
12 document if the copy is admissible under another written law.
13 Compare:
14 Evidence Act 1906 s. 73A
15 334. Presumption as to documents attested by justices, lawyers
16 and notaries public
17 It is presumed, unless the contrary is proved, that a document
18 was attested or verified by, or signed or acknowledged before, a
19 justice of the peace, lawyer or notary public, if --
20 (a) an Australian law requires, authorises or permits it to be
21 attested, verified, signed or acknowledged by a justice of
22 the peace, a lawyer or a notary public, as the case may
23 be; and
24 (b) it purports to have been attested, verified, signed or
25 acknowledged as referred to in paragraph (a).
26 Compare:
27 Evidence Act 1995 (Commonwealth) s. 148
28 335. Testimony of attesting witness not required
29 It is not necessary to adduce the evidence of an attesting witness
30 to a document (not being a testamentary document) to prove
page 260
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of other matters relating to documents and things Division 4
s. 336
1 that the document was signed or attested as it purports to have
2 been signed or attested.
3 Compare:
4 Evidence Act 1995 (Commonwealth) s. 149
5 336. Presumption as to documents produced from proper
6 custody
7 (1) If a document that is or purports to be more than 20 years of age
8 is produced from proper custody, it is presumed, unless the
9 contrary is proved, that --
10 (a) the document is the document that it purports to be; and
11 (b) if it purports to have been executed or attested by a
12 person -- it was duly executed or attested by that
13 person.
14 (2) The presumption referred to in subsection (1) extends to a copy
15 of a document referred to in subsection (1) that is admitted into
16 evidence as if the copy were the document.
17 Compare:
18 Evidence Act 1906 s. 73N
19 Evidence Act 1995 (Commonwealth) s. 152
20 337. Proof of foreign documents admissible in foreign countries
21 (1) A document that is admissible in evidence for a purpose in a
22 foreign court prescribed by the regulations for the purposes of
23 this section without proof of the following matters is admissible
24 in evidence to the same extent and for the same purpose in this
25 State without proof of those matters --
26 (a) the seal or signature authenticating the document; or
27 (b) the judicial or official character of the person appearing
28 to have signed the document.
page 261
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 5 Proof of communications
s. 338
1 (2) This section extends to a proceeding before a person acting
2 judicially.
3 Compare:
4 Evidence Act 1906 s. 62
5 Division 5 -- Proof of communications
6 338. Presumption relating to receipt of postal articles
7 (1) In this section --
8 postal article has the meaning given in the Australian Postal
9 Corporation Act 1989 (Commonwealth) section 3;
10 working day means a day that is not --
11 (a) a Saturday or a Sunday; or
12 (b) a public holiday or a bank holiday in the place to which
13 the postal article was addressed.
14 (2) It is presumed (unless evidence sufficient to raise doubt about
15 the presumption is adduced) that a postal article sent by prepaid
16 post addressed to a person at a specified address in Australia or
17 in an external Territory was received by the person at that
18 address on the 7th working day after having been posted.
19 (3) This section does not apply if --
20 (a) the proceeding relates to a contract; and
21 (b) all the parties to the proceeding are parties to the
22 contract; and
23 (c) subsection (2) is inconsistent with a term of the contract.
24 Compare:
25 Evidence Act 1995 (Commonwealth) s. 160
26 339. Presumptions relating to electronic communications
27 (1) If a document purports to contain a record of an electronic
28 communication, it is presumed (unless evidence sufficient to
page 262
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of communications Division 5
s. 340
1 raise doubt about the presumption is adduced) that the
2 communication --
3 (a) was sent or made in the form of electronic
4 communication that appears from the document to have
5 been the form by which it was sent or made; and
6 (b) was sent or made by or on behalf of the person by or on
7 whose behalf it appears from the document to have been
8 sent or made; and
9 (c) was sent or made on the day on which, at the time at
10 which and from the place from which it appears from
11 the document to have been sent or made; and
12 (d) was received at the destination to which it appears from
13 the document to have been sent; and
14 (e) if it appears from the document that the sending of the
15 communication concluded at a particular time -- was
16 received at that destination at that time.
17 (2) A provision of subsection (1) does not apply if --
18 (a) the proceeding relates to a contract; and
19 (b) all the parties to the proceeding are parties to the
20 contract; and
21 (c) the provision is inconsistent with a term of the contract.
22 (3) This section does not apply to a document that purports to
23 contain a record of a message transmitted by means of a
24 lettergram or telegram.
25 Compare:
26 Evidence Act 1995 (Commonwealth) s. 161
27 340. Presumption relating to receipt of lettergrams and
28 telegrams
29 (1) If a document purports to contain a record of a message
30 transmitted by means of a lettergram or telegram, it is presumed
31 (unless evidence sufficient to raise doubt about the presumption
32 is adduced) that the message was received by the person to
page 263
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 6 Proof of matters relating to documents or things by affidavit or
written statement
s. 341
1 whom it was addressed 24 hours after the message was
2 delivered to a post office for transmission as a lettergram or
3 telegram.
4 (2) This section does not apply if --
5 (a) the proceeding relates to a contract; and
6 (b) all the parties to the proceeding are parties to the
7 contract; and
8 (c) subsection (1) is inconsistent with a term of the contract.
9 Compare:
10 Evidence Act 1995 (Commonwealth) s. 162
11 Division 6 -- Proof of matters relating to documents or things
12 by affidavit or written statement
13 341. Application of Division
14 This Division applies to evidence of a fact that is, because of a
15 provision of this Act referred to in the Table, to be proved in
16 relation to a document or thing.
17 Table
Provision Subject matter
Section 59 Proof of contents of documents
Sections 76, 77 and 78 Hearsay rule exceptions for
first-hand hearsay
Section 83 Hearsay rule exception for business
records
Section 84 Hearsay rule exception for tags,
labels and writing
page 264
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of matters relating to documents or things by affidavit or Division 6
written statement
s. 342
Provision Subject matter
Section 85 Hearsay rule exception for
electronic communication
Part 9 Division 3 Proof of public documents and
other official matters
Part 9 Division 4 Proof of other matters relating to
documents and things
Part 9 Division 5 Proof of communications
1 Compare:
2 Evidence Act 1995 (Commonwealth) s. 170(1)
3 342. Persons who may give evidence
4 (1) Evidence may be given by --
5 (a) a person who, at the relevant time or afterwards, had a
6 position of responsibility in relation to making or
7 keeping the document or thing; or
8 (b) any of the following persons (each of whom is an
9 authorised person) --
10 (i) a person who is an authorised witness for an
11 affidavit or statutory declaration that is made
12 outside the State under the Oaths, Affidavits and
13 Statutory Declarations Act 2005 section 9(8)
14 or 12(6)(b) or (c);
15 (ii) a police officer of or above the rank of sergeant;
16 (iii) a person authorised by the Minister for the
17 purposes of this section.
18 (2) Despite subsection (1)(b), evidence must not be given by an
19 authorised person who, at the relevant time or afterwards, did
20 not have a position of responsibility in relation to making or
page 265
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 6 Proof of matters relating to documents or things by affidavit or
written statement
s. 343
1 keeping the document or thing unless it appears to the court
2 that --
3 (a) it is not reasonably practicable for the evidence to be
4 given by a person who had, at the relevant time or
5 afterwards, a position of responsibility in relation to
6 making or keeping the document or thing; or
7 (b) having regard to all the circumstances of the case, undue
8 expense would be caused by calling a person who had,
9 at the relevant time or afterwards, a position of
10 responsibility in relation to making or keeping the
11 document or thing, as a witness.
12 (3) Subsection (1)(b) does not apply to evidence of a fact that must
13 be proved in relation to a document or thing because of
14 section 76, 77 or 78.
15 Compare:
16 Evidence Act 1995 (Commonwealth) s. 171
17 343. Form in which evidence may be given
18 Evidence may be given by affidavit or, if the evidence relates to
19 a public document, by a written statement.
20 Compare:
21 Evidence Act 1995 (Commonwealth) s. 170(2)
22 344. Evidence based on knowledge, belief or information
23 (1) Despite Part 3, evidence may include evidence based on the
24 knowledge and belief of the person who gives it, or on
25 information that that person has.
26 (2) An affidavit or statement that includes evidence based on
27 knowledge, information or belief must set out the source of the
28 knowledge or information or the basis of the belief.
29 Compare:
30 Evidence Act 1995 (Commonwealth) s. 172
page 266
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of other matters by certificate or affidavit Division 7
s. 345
1 345. Notification of other parties
2 (1) A copy of the affidavit or statement must be served on each
3 party within a reasonable time before the hearing of the
4 proceeding.
5 (2) The party who tenders the affidavit or statement must, if another
6 party requests it, call the deponent or person who made the
7 statement to give evidence but need not otherwise do so.
8 Compare:
9 Evidence Act 1995 (Commonwealth) s. 173
10 Division 7 -- Proof of other matters by certificate or affidavit
11 346. Certificate of expert evidence
12 (1) Evidence of a person's opinion may be adduced by tendering a
13 certificate (an expert certificate) signed by the person that --
14 (a) states the person's name and address; and
15 (b) states that the person has specialised knowledge based
16 on the person's training, study or experience, as
17 specified in the certificate; and
18 (c) sets out an opinion that the person holds and that is
19 expressed to be wholly or substantially based on that
20 knowledge.
21 (2) Subsection (1) does not apply unless the party seeking to tender
22 the expert certificate has served on each other party --
23 (a) a copy of the certificate; and
24 (b) a written notice stating that the party proposes to tender
25 the certificate as evidence of the opinion.
26 (3) Service must be effected not later than --
27 (a) 21 days before the hearing; or
28 (b) if, on application by the party before or after service, the
29 court substitutes a different period -- the beginning of
30 that period.
page 267
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 7 Proof of other matters by certificate or affidavit
s. 347
1 (4) Service for the purposes of subsection (2) may be proved by
2 affidavit.
3 (5) A party on whom the documents referred to in subsection (2)
4 are served may, by written notice served on the party proposing
5 to tender the expert certificate, require the party to call the
6 person who signed the certificate to give evidence.
7 (6) The expert certificate is not admissible as evidence if that
8 requirement is made.
9 (7) The court may make any order with respect to costs that it
10 considers just against a party who has, without reasonable
11 cause, required a party to call a person to give evidence under
12 this section.
13 Compare:
14 Evidence Act 1995 (Commonwealth) s. 177
15 347. Certificate evidence of convictions, acquittals, sentences and
16 other court matters
17 (1) In this section --
18 acquittal includes the dismissal of the charge in question by an
19 applicable court;
20 applicable court means an Australian court or a foreign court.
21 (2) This section applies to the following facts --
22 (a) the conviction or acquittal before or by an applicable
23 court of a person charged with an offence;
24 (b) the sentencing of a person to any punishment or
25 pecuniary penalty by an applicable court;
26 (c) an order by an applicable court;
27 (d) the pendency or existence at any time before an
28 applicable court of a civil or criminal proceeding.
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Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of other matters by certificate or affidavit Division 7
s. 347
1 (3) Evidence of a fact to which this section applies may be given by
2 a certificate signed by a judge, a magistrate or a registrar or
3 other proper officer of the applicable court --
4 (a) showing the fact, or purporting to contain particulars, of
5 the record, indictment, conviction, acquittal, sentence,
6 order or proceeding in question; and
7 (b) stating the time and place of the conviction, acquittal,
8 sentence, order or proceeding; and
9 (c) stating the title of the applicable court.
10 (4) A certificate given under this section showing a conviction,
11 acquittal, sentence or order is also evidence of the particular
12 offence or matter in respect of which the conviction, acquittal,
13 sentence or order was had, passed or made, if stated in the
14 certificate.
15 (5) A certificate given under this section showing the pendency or
16 existence of a proceeding is also evidence of the particular
17 nature and occasion, or ground and cause, of the proceeding, if
18 stated in the certificate.
19 (6) A certificate given under this section purporting to contain
20 particulars of a record, indictment, conviction, acquittal,
21 sentence, order or proceeding is also evidence of the matters
22 stated in the certificate.
23 (7) This section does not affect the operation of section 107 or any
24 other provision of this Act that limits the admissibility of
25 evidence of a fact to which this section applies.
26 Compare:
27 Evidence Act 1995 (Commonwealth) s. 178
page 269
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 7 Proof of other matters by certificate or affidavit
s. 348
1 348. Affidavit evidence of identity of convicted persons by State
2 and Territory police
3 (1) This section applies if a member of a police force of a State or
4 Territory --
5 (a) makes an affidavit in the form prescribed by the
6 regulations for the purposes of this section; and
7 (b) states in the affidavit that the member is a fingerprint
8 expert for that police force.
9 (2) For the purpose of proving before a court the identity of a
10 person alleged to have been convicted in that State or Territory
11 of an offence, the affidavit is evidence in a proceeding that the
12 person whose fingerprints are shown on a fingerprint card
13 referred to in the affidavit and marked for identification --
14 (a) is the person referred to in a certificate of conviction, or
15 certified copy of conviction annexed to the affidavit, as
16 having been convicted of an offence; and
17 (b) was convicted of that offence; and
18 (c) was convicted of any other offence of which the person
19 is stated in the affidavit to have been convicted.
20 (3) For the purposes of this section, if a Territory does not have its
21 own police force, the police force performing the policing
22 functions of the Territory is taken to be the police force of the
23 Territory.
24 Compare:
25 Evidence Act 1995 (Commonwealth) s. 179
26 349. Affidavit evidence of identity of convicted persons by AFP
27 employees and special members
28 (1) In this section --
29 AFP employee has the meaning given in the Australian Federal
30 Police Act 1979 (Commonwealth) section 4(1);
page 270
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of other matters by certificate or affidavit Division 7
s. 350
1 AFP special member means a special member of the Australian
2 Federal Police as defined in the Australian Federal Police
3 Act 1979 (Commonwealth) section 4(1).
4 (2) This section applies if an AFP employee or AFP special
5 member --
6 (a) makes an affidavit in the form prescribed by the
7 regulations for the purposes of this section; and
8 (b) states in the affidavit that the AFP employee or
9 AFP special member is a fingerprint expert for the
10 Australian Federal Police.
11 (3) For the purpose of proving before a court the identity of a
12 person alleged to have been convicted of any offence against a
13 law of the Commonwealth, the affidavit is evidence in a
14 proceeding that the person whose fingerprints are shown on a
15 fingerprint card referred to in the affidavit and marked for
16 identification --
17 (a) is the person referred to in a certificate of conviction, or
18 certified copy of conviction annexed to the affidavit, as
19 having been convicted of an offence; and
20 (b) was convicted of that offence; and
21 (c) was convicted of any other offence of which the person
22 is stated in the affidavit to have been convicted.
23 Compare:
24 Evidence Act 1995 (Commonwealth) s. 180
25 350. DNA profile certificates
26 (1) In this section and section 351 --
27 DNA profile means the result from DNA analysis;
28 examination, of a thing, includes testing the thing;
29 forensic scientist means a person, or a person who holds an
30 office, prescribed by the regulations for the purposes of this
31 definition;
page 271
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 7 Proof of other matters by certificate or affidavit
s. 350
1 thing includes anything in or on or otherwise attached to the
2 thing.
3 (2) This section applies to a criminal proceeding.
4 (3) A certificate (a DNA profile certificate) purporting to be signed
5 by a forensic scientist and stating any of the following matters is
6 evidence of the matter --
7 (a) that a stated thing was received at a stated laboratory on
8 a stated day;
9 (b) that the thing was examined at the laboratory on a stated
10 day or between stated days;
11 (c) that a DNA profile was, or a stated number of DNA
12 profiles were, obtained from the thing;
13 (d) that a forensic scientist --
14 (i) examined the laboratory's records relating to the
15 receipt, storage and examination of the thing,
16 including any examination of the thing that was
17 done by a person other than the forensic scientist;
18 and
19 (ii) confirms that the records indicate that all quality
20 assurance procedures for the receipt, storage and
21 examination of the thing that applied in the
22 laboratory at the time the thing was examined
23 were complied with.
24 (4) Any equipment used in examining the thing at the laboratory is
25 taken to have given accurate results in the absence of evidence
26 to the contrary.
27 Compare:
28 Evidence Act 1906 s. 50B
page 272
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of other matters by certificate or affidavit Division 7
s. 351
1 351. Procedure for using DNA profile certificates
2 (1) In this section --
3 authorised officer, for a laboratory, means a person who holds
4 an office prescribed by the regulations for the purposes of this
5 definition in relation to that laboratory;
6 DNA profile certificate has the meaning given in
7 section 350(3);
8 working day means a day that is not a Saturday, Sunday or
9 public holiday.
10 (2) A party who intends to rely on a DNA profile certificate in a
11 criminal proceeding must --
12 (a) give a copy of the certificate to each other party at least
13 10 working days before the day set for the start of the
14 trial in the proceeding; and
15 (b) at the hearing, call the forensic scientist who gave the
16 certificate to give evidence, unless the parties agree
17 otherwise.
18 (3) If the authorised officer for a laboratory receives a written
19 request from a party for a copy of the laboratory's records
20 relating to the receipt, storage and examination of the thing
21 referred to in a DNA profile certificate, the authorised officer
22 must give the party a copy of the records within 7 working days
23 after receiving the request.
24 (4) If a party intends to dispute a matter stated in the DNA profile
25 certificate, the party must, at least 5 working days before the
26 day set for the start of the trial in the proceeding, give the
27 authorised officer and each other party written notice of the
28 matter to be disputed.
29 (5) A party disputing a matter stated in the DNA profile certificate
30 may, with the leave of the court, require the party relying on the
31 certificate to call any person involved in the receipt, storage or
page 273
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 7 Proof of other matters by certificate or affidavit
s. 352
1 examination of the thing referred to in the certificate to give
2 evidence at the hearing.
3 (6) The court may give leave only if satisfied --
4 (a) that an irregularity may exist in relation to the receipt,
5 storage or examination of the thing about which the
6 person to be called is able to give evidence; and
7 (b) that it is in the interests of justice that the person be
8 called to give evidence.
9 (7) The court may, by order, extend or shorten a time fixed by this
10 section by fixing a new time or by extending or shortening the
11 time.
12 (8) An application for an order under subsection (7) may be made
13 before or after the time fixed by this section expires.
14 (9) A document required to be given under this section must be
15 given in accordance with any regulations or rules of court made
16 for the purposes of this section.
17 Compare:
18 Evidence Act 1906 s. 50B
19 352. Proof of service of statutory notifications, notices, orders
20 and directions
21 (1) The service, giving or sending under an Australian law of a
22 written notification, notice, order or direction may be proved by
23 affidavit of the person who served, gave or sent it.
24 (2) A person who, for the purposes of a proceeding, makes an
25 affidavit referred to in this section is not, because of making the
26 affidavit, excused from attending for cross-examination if
27 required to do so by a party to the proceeding.
28 Compare:
29 Evidence Act 1995 (Commonwealth) s. 181
page 274
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of particular matters in criminal proceeding Division 8
s. 353
1 Division 8 -- Proof of particular matters in criminal proceeding
2 353. Depositions on 1 charge admissible on trial of another
3 Depositions taken on the preliminary or other investigation of
4 any charge of an offence may be --
5 (a) received as evidence on the trial of the accused for any
6 other offence, although of a higher or different nature, if
7 they would be admissible on the trial for the offence in
8 respect of which they were taken; and
9 (b) proved in the same manner as if the accused were on
10 trial for that offence.
11 354. Proof of intention to injure, deceive or defraud
12 In any criminal proceeding in which it is necessary to prove an
13 intention to injure or deceive or defraud, or an intention to
14 enable another person to deceive or defraud, it is not necessary
15 to prove an intention to injure or deceive or defraud a particular
16 person or an intention to enable any particular person to deceive
17 or defraud any particular person.
18 Compare:
19 Evidence Act 1906 s. 29
20 355. Evidence of stealing or receiving property from aircraft,
21 vehicle, vessel or related premises
22 (1) In this section --
23 aircraft, vehicle and vessel have the meanings given in The
24 Criminal Code section 1(1);
25 shipping document includes a bill of lading, manifest, shipping
26 receipt, delivery order, packing list, waybill or invoice.
27 (2) This section applies to a criminal proceeding for an offence
28 of --
29 (a) stealing property from an aircraft, vehicle or vessel; or
page 275
Evidence Bill 2024
Part 9 Judicial notice and facilitation of proof
Division 8 Proof of particular matters in criminal proceeding
s. 355
1 (b) stealing property from any building, structure or place
2 used in connection with the docking, loading or
3 unloading of an aircraft, vehicle or vessel; or
4 (c) receiving any property stolen as referred to in
5 paragraph (a) or (b); or
6 (d) being in possession of anything that may reasonably be
7 suspected of being stolen as referred to in paragraph (a)
8 or (b).
9 (3) In the proceeding --
10 (a) evidence may be given of any writing, printing or marks
11 on the property the subject of the proceeding without
12 producing or giving notice to produce the original
13 writing, printing or marks; and
14 (b) any apparently genuine document purporting to be a
15 shipping document for the property or for property that
16 may reasonably be assumed to be the same as the
17 property the subject of the proceeding --
18 (i) is admissible in evidence on production and
19 without further proof; and
20 (ii) is evidence of the particulars contained in the
21 document and that the ownership of the property
22 is in the consignee referred to in the document or
23 an assignee of that consignee.
24 (4) In deciding whether any property described in a shipping
25 document is the same as the property the subject of the
26 proceeding, regard must be had to the following --
27 (a) the description of the property in the document;
28 (b) any writing, printing or marks on the property, or on any
29 package containing the property, as detailed in the
30 document;
31 (c) the source from which the document was obtained;
32 (d) how the document was produced;
page 276
Evidence Bill 2024
Judicial notice and facilitation of proof Part 9
Proof of particular matters in criminal proceeding Division 8
s. 356
1 (e) the circumstances in which the document came into the
2 custody of the person producing it;
3 (f) any other relevant circumstances.
4 (5) This section applies if evidence is adduced that the stealing
5 occurred in or from a building, structure or place referred to in
6 subsection (2)(b), whether or not the building, structure or place
7 is specified in the charge for the offence.
8 Compare:
9 Evidence Act 1906 s. 41A
10 356. Proof of stealing money
11 In a proceeding for the offence of stealing --
12 (a) an entry in a book of account kept or made by the
13 accused, or under the accused's supervision, that
14 purports to be an entry of the receipt of any money is
15 evidence that the money was received by the accused;
16 and
17 (b) it is not necessary to prove that the accused stole a
18 specific sum of money if, on an examination of any
19 books of account or entries in a book of account kept or
20 made by the accused, or under the accused's
21 supervision, or any other evidence --
22 (i) there is proof of a general deficiency; and
23 (ii) the trier of fact is satisfied that the accused stole
24 the deficient money or any part of it.
25 Compare:
26 Evidence Act 1906 s. 44
page 277
Evidence Bill 2024
Part 10 Miscellaneous
s. 357
1 Part 10 -- Miscellaneous
2 357. Inferences
3 If a question arises about the application of a provision of this
4 Act in relation to a document or thing, the court may --
5 (a) examine the document or thing; and
6 (b) draw any reasonable inferences from it as well as from
7 other matters from which inferences may properly be
8 drawn.
9 Compare:
10 Evidence Act 1995 (Commonwealth) s. 183
11 358. Accused may admit matters and give consents
12 (1) In or before a criminal proceeding, an accused may --
13 (a) admit any matter of fact that a party to a civil
14 proceeding may admit; and
15 (b) give any consent that a party to a civil proceeding may
16 give.
17 (2) An accused's admission or consent is not effective for the
18 purposes of subsection (1) unless --
19 (a) the accused has been advised to make the admission or
20 give the consent by the accused's legal counsel; or
21 (b) the court is satisfied that the accused understands the
22 consequences of making the admission or giving the
23 consent.
24 Compare:
25 Evidence Act 1995 (Commonwealth) s. 184
26 359. Impounding documents
27 (1) A court may direct that a document that has been tendered or
28 produced before the court (whether or not it is admitted in
29 evidence) must be impounded and kept in the custody of an
page 278
Evidence Bill 2024
Miscellaneous Part 10
s. 360
1 officer of the court or of another person for the period, and
2 subject to the conditions, that the court thinks fit.
3 (2) This section extends to a proceeding before a person acting
4 judicially.
5 Compare:
6 Evidence Act 1995 (Commonwealth) s. 188
7 360. Preliminary questions
8 (1) In this section, a preliminary question is a question as to
9 whether a particular fact exists, being a question of fact that
10 must be decided by the court before it makes a determination as
11 to whether --
12 (a) evidence should be admitted (whether in the exercise of
13 a discretion or not); or
14 (b) evidence can be used against a person; or
15 (c) a witness is competent or compellable.
16 (2) If there is a jury, each of the following preliminary questions
17 must be heard and determined in the jury's absence --
18 (a) a question of whether particular evidence is evidence of
19 an admission, or evidence to which section 204 applies;
20 (b) a question of whether evidence of an admission, or
21 evidence to which section 204 applies, should be
22 admitted.
23 (3) In the hearing of a preliminary question about whether an
24 accused's admission should be admitted into evidence (whether
25 in the exercise of a discretion or not) in a criminal proceeding,
26 the issue of the admission's truth or untruth must be disregarded
27 unless the issue is introduced by the accused.
28 (4) If there is a jury, the jury must not be present at a hearing to
29 decide any other preliminary question unless the court otherwise
30 orders.
page 279
Evidence Bill 2024
Part 10 Miscellaneous
s. 360
1 (5) Without limiting the matters that the court may take into
2 account in deciding whether to make that order, it must take into
3 account --
4 (a) whether the evidence to be adduced in the course of that
5 hearing is likely to be prejudicial to the accused; and
6 (b) whether the evidence concerned will be adduced in the
7 course of the hearing to decide the preliminary question;
8 and
9 (c) whether the evidence to be adduced in the course of that
10 hearing would be admitted if adduced at another stage of
11 the hearing (other than in another hearing to decide a
12 preliminary question or, in a criminal proceeding, a
13 hearing in relation to sentencing).
14 (6) Section 186 applies to a hearing to decide a preliminary
15 question, despite section 186(8).
16 (7) In the application of Part 3, 4 or 5 to a hearing to determine a
17 preliminary question, the facts in issue are taken to include the
18 question of fact to which the hearing relates.
19 (8) If a jury in a proceeding was not present at a hearing to
20 determine a preliminary question, evidence must not be adduced
21 in the proceeding of evidence given by a witness at the hearing
22 unless --
23 (a) it is inconsistent with other evidence given by the
24 witness in the proceeding; or
25 (b) the witness has died.
26 (9) If, after a hearing under this section, a document or thing is
27 ruled admissible as evidence, it is not necessary for the party
28 proposing to adduce the evidence to tender the evidence again.
29 Compare:
30 Evidence Act 1995 (Commonwealth) s. 189
page 280
Evidence Bill 2024
Miscellaneous Part 10
s. 361
1 361. Waiver of rules of evidence
2 (1) A court may, if the parties consent, by order dispense with the
3 application of any of the following in relation to particular
4 evidence or generally --
5 (a) the provisions of Part 2 Division 1 Subdivision 3, 4 or 5;
6 (b) the provisions of Part 2 Division 2 or 3;
7 (c) the provisions of Part 3 Divisions 2 to 8.
8 (2) In a criminal proceeding, an accused's consent is not effective
9 for the purposes of subsection (1) unless --
10 (a) the accused has been advised to do so by the accused's
11 legal counsel; or
12 (b) the court is satisfied that the accused understands the
13 consequences of giving the consent.
14 (3) In a civil proceeding, the court may order that any of the
15 provisions mentioned in subsection (1) do not apply in relation
16 to evidence if --
17 (a) the matter to which the evidence relates is not genuinely
18 in dispute; or
19 (b) the application of those provisions would cause or
20 involve unnecessary expense or delay.
21 (4) Without limiting the matters that the court may take into
22 account in deciding whether to exercise the power conferred by
23 subsection (3), it must take into account --
24 (a) the importance of the evidence in the proceeding; and
25 (b) the nature of the cause of action or defence and the
26 nature of the subject matter of the proceeding; and
27 (c) the probative value of the evidence; and
28 (d) the powers of the court (if any) to adjourn the hearing, to
29 make another order or to give a direction in relation to
30 the evidence.
page 281
Evidence Bill 2024
Part 10 Miscellaneous
s. 362
1 (5) This section does not permit a court to dispense with the
2 application of section 56 or 57.
3 Compare:
4 Evidence Act 1995 (Commonwealth) s. 190
5 362. Agreements as to facts
6 (1) In this section --
7 agreed fact means a fact that the parties to a proceeding have
8 agreed is not, for the purposes of the proceeding, to be disputed.
9 (2) In a proceeding --
10 (a) evidence is not required to prove the existence of an
11 agreed fact unless the court gives leave; and
12 (b) evidence may not be adduced to contradict or qualify an
13 agreed fact unless the court gives leave.
14 (3) Subsection (2) does not apply unless the agreed fact --
15 (a) is stated in an agreement in writing signed by the parties
16 or by legal counsels or prosecutors representing the
17 parties and adduced in evidence in the proceeding; or
18 (b) with the leave of the court, is stated by a party before the
19 court with the agreement of all other parties.
20 Compare:
21 Evidence Act 1995 (Commonwealth) s. 191
22 363. Leave, permission or direction may be subject to conditions
23 (1) If, because of this Act, a court may give any leave, permission
24 or direction, the leave, permission or direction may be given
25 subject to the conditions that the court thinks fit.
26 (2) Without limiting the matters that the court may take into
27 account in deciding whether to give the leave, permission or
28 direction, the court must take into account --
29 (a) the extent to which to do so would be likely to add
30 unduly to, or to shorten, the length of the hearing; and
page 282
Evidence Bill 2024
Miscellaneous Part 10
s. 364
1 (b) the extent to which to do so would be unfair to a party or
2 to a witness; and
3 (c) the importance of the evidence in relation to which the
4 leave, permission or direction is sought; and
5 (d) the nature of the proceeding; and
6 (e) the power (if any) of the court to adjourn the hearing or
7 to make another order or to give a direction in relation to
8 the evidence.
9 Compare:
10 Evidence Act 1995 (Commonwealth) s. 192
11 364. Advance rulings and findings
12 If a question arises in any proceeding about any of the
13 following, the court may, if it considers it appropriate to do so,
14 give a ruling or make a finding in relation to the question before
15 the evidence concerned is adduced in the proceeding --
16 (a) the admissibility or use of evidence proposed to be
17 adduced;
18 (b) the operation of a provision of this Act or another law in
19 relation to evidence proposed to be adduced;
20 (c) the giving of any leave, permission or direction that the
21 court may give under this Act.
22 Compare:
23 Evidence Act 1995 (Commonwealth) s. 192A
24 365. Additional powers of court in relation to discovery and
25 disclosure
26 (1) The powers of a court in relation to discovery and disclosure
27 extend to enabling the court to make any orders the court thinks
28 fit to ensure that the parties to a proceeding can adequately, and
29 in an appropriate matter, inspect documents, including orders
30 about any of the following --
31 (a) methods of inspection;
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Evidence Bill 2024
Part 10 Miscellaneous
s. 366
1 (b) adjournments;
2 (c) costs.
3 (2) A reference in this section to the powers of a court in relation to
4 discovery and disclosure is a reference to the powers of a court
5 in relation to --
6 (a) the discovery or inspection of documents; and
7 (b) ordering disclosure and exchange of evidence, intended
8 evidence, documents and reports.
9 (3) The power of the court to make an order for costs under
10 subsection (1) is subject to the Criminal Procedure Act 2004
11 section 123.
12 Compare:
13 Evidence Act 1995 (Commonwealth) s. 193(1)
14 366. Additional power to make rules of court
15 (1) The power of a person or body to make rules of court extends to
16 making rules, not inconsistent with this Act or the regulations,
17 prescribing matters --
18 (a) required or permitted by this Act to be prescribed; or
19 (b) necessary or convenient to be prescribed for carrying out
20 or giving effect to the purposes of this Act; or
21 (c) necessary or convenient to be prescribed for giving
22 effect to the purposes of the Courts and Tribunals
23 (Electronic Processes Facilitation) Act 2013 Part 2 (as
24 applied by section 16 of this Act).
25 (2) Without limiting subsection (1), rules made under that
26 subsection may provide for any of the following --
27 (a) the discovery, exchange, inspection or disclosure of
28 intended evidence, documents and reports of persons
29 intended to be called by a party to give evidence in a
30 proceeding;
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Evidence Bill 2024
Miscellaneous Part 10
s. 367
1 (b) the exclusion of evidence, or its admission subject to
2 specified conditions, if the rules are not complied with.
3 (3) The Courts and Tribunals (Electronic Processes Facilitation)
4 Act 2013 section 20(3) and (4) apply as if the power conferred
5 by subsection (1)(c) of this section were a power conferred by
6 section 20(1) or (2) of that Act.
7 Compare:
8 Evidence Act 1906 s. 133
9 Evidence Act 1995 (Commonwealth) s. 193(2) to (4)
10 367. Witness who fails to attend proceeding
11 (1) If a witness fails to appear when called in any proceeding and it
12 is proved that the witness was duly bound by recognisance or
13 served with a subpoena, summons or order to attend as a
14 witness in the proceeding, the court may --
15 (a) order the witness to show cause why execution of the
16 recognisance or an attachment for disobedience to the
17 subpoena, summons or order should not be issued
18 against the witness; or
19 (b) if it is proved that the non-appearance is without just
20 cause or reasonable excuse, and that the witness will
21 probably be able to give relevant evidence in the
22 proceeding -- issue a warrant to bring the witness
23 before the court to give evidence at the proceeding.
24 (2) Matters may be proved under this section orally or by affidavit.
25 (3) An order to show cause under subsection (1)(a) may --
26 (a) be made returnable before the court then sitting or at
27 some future sitting; or
28 (b) in respect of the non-appearance of a witness at a circuit
29 court (as defined in the Supreme Court Act 1935
30 section 48) or on the trial of a case pending in the
31 Supreme Court, be made returnable in the Supreme
32 Court.
page 285
Evidence Bill 2024
Part 10 Miscellaneous
s. 368
1 (4) On return of the order to show cause, the court may deal with
2 the case in the same way as the Supreme Court would deal with
3 an order to similar effect made by the Supreme Court.
4 Compare:
5 Evidence Act 1906 s. 16 and 17
6 368. Prohibited question not to be published
7 (1) A person must not, without the express permission of a court,
8 publish --
9 (a) any question that the court has disallowed under
10 section 50; or
11 (b) any question that the court has disallowed because any
12 answer that is likely to be given to the question would
13 contravene the credibility rule; or
14 (c) any question in respect of which the court has refused to
15 give leave under Part 3 Division 7.
16 Penalty for this subsection: a fine of $6 000.
17 (2) A person who contravenes subsection (1) --
18 (a) is taken to be in contempt of the court that disallowed
19 the question or refused to give leave; and
20 (b) is punishable accordingly.
21 (3) A contempt of court referred to in subsection (2) is punishable
22 by a fine not exceeding $6 000.
23 (4) If a person's act constitutes both an offence under subsection (1)
24 and a contempt of court under subsection (3), the person cannot
25 be punished for both.
26 Compare:
27 Evidence Act 1906 s. 27
28 Evidence Act 1995 (Commonwealth) s. 195
page 286
Evidence Bill 2024
Miscellaneous Part 10
s. 369
1 369. Identity of certain witnesses not to be published
2 (1) This section applies --
3 (a) in relation to a criminal proceeding -- if a person is
4 charged with a sexual offence; or
5 (b) in relation to a civil proceeding -- if it is alleged that a
6 witness is the victim of sexual abuse or sexual
7 harassment.
8 (2) For the purposes of subsection (1)(a), a person is charged with a
9 sexual offence if --
10 (a) the person is charged in a prosecution notice or an
11 indictment with committing a sexual offence; or
12 (b) the person appears before a court charged with a sexual
13 offence; or
14 (c) a court before which the person is appearing commits
15 the person for trial for a charge alleging a sexual
16 offence.
17 (3) The following information must not be published, except with
18 the express permission of a court --
19 (a) information that is likely to enable members of the
20 public to identify an alleged victim of a sexual offence,
21 sexual abuse or sexual harassment;
22 (b) if an alleged victim of a sexual offence, sexual abuse or
23 sexual harassment attends school -- information that is
24 likely to enable members of the public to identify the
25 school at which the alleged victim attends.
26 (4) If information is published in contravention of subsection (3),
27 each of the following persons commits an offence --
28 (a) in the case of information published in a newspaper or
29 periodical publication -- any proprietor, editor or
30 publisher of the newspaper or periodical publication at
31 the time the information was published;
page 287
Evidence Bill 2024
Part 10 Miscellaneous
s. 369
1 (b) in the case of information published in a program that is
2 broadcast --
3 (i) the person who transmitted or provided the
4 program; and
5 (ii) any person having functions in relation to the
6 program that were comparable to the functions of
7 an editor of a newspaper at the time the
8 information was published;
9 (c) in the case of information published in a manner not
10 mentioned in paragraph (a) or (b) -- the person who
11 published the information.
12 Penalty for this subsection:
13 (a) for an individual, a fine of $5 000;
14 (b) for a body corporate, a fine of $25 000.
15 (5) A court has jurisdiction to give permission under subsection (3)
16 if the court is hearing or has jurisdiction to hear the proceeding
17 concerned.
18 (6) The giving of permission under subsection (3) does not excuse a
19 contravention of the subsection that occurred before permission
20 was given.
21 (7) It is a defence to a charge of an offence under subsection (4) to
22 prove that --
23 (a) the person to whom the published matter relates gave
24 written authorisation to the publication of the matter
25 before it was published; and
26 (b) at the time of giving that authorisation, the person who
27 gave it --
28 (i) had reached 18 years of age; and
page 288
Evidence Bill 2024
Miscellaneous Part 10
s. 370
1 (ii) was not, because of a disability, incapable of
2 making reasonable judgments in respect of the
3 publication of the matter concerned.
4 Compare:
5 Evidence Act 1906 s. 36C
6 370. Customs prosecutions
7 This Act, as it applies to a Customs prosecution (as defined in
8 the Customs Act 1901 (Commonwealth) section 244), does not
9 affect the operation of the Customs Act 1901 (Commonwealth).
10 Compare:
11 Evidence Act 1906 s. 14, 40 and 41
12 371. Regulations
13 (1) The Governor may make regulations prescribing all matters that
14 are required or permitted by this Act to be prescribed, or are
15 necessary or convenient to be prescribed for giving effect to the
16 purposes of --
17 (a) this Act; or
18 (b) the Courts and Tribunals (Electronic Processes
19 Facilitation) Act 2013 Part 2 (as it applies to this Act).
20 (2) Without limiting subsection (1), the regulations may provide for
21 the fees and expenses payable in relation to the taking of
22 evidence or receiving of a submission by video link or audio
23 link and the person liable for payment.
24 (3) The regulations may provide that a contravention of a regulation
25 is an offence and prescribe, for an offence against the
26 regulations, a penalty of imprisonment for a term not exceeding
27 12 months and a fine not exceeding $100 000.
page 289
Evidence Bill 2024
Part 10 Miscellaneous
s. 372
1 (4) The Courts and Tribunals (Electronic Processes Facilitation)
2 Act 2013 section 20(3) and (4) apply as if the power conferred
3 by subsection (1)(b) of this section were a power conferred by
4 section 20(1) or (2) of that Act.
5 Compare:
6 Evidence Act 1906 s. 131 and 133
7 372. Review of Act
8 (1) The Minister must review the operation and effectiveness of this
9 Act, and prepare a report based on the review, as soon as
10 practicable after the 5th anniversary of the day on which this
11 section comes into operation.
12 (2) The Minister must cause the report to be laid before each House
13 of Parliament as soon as practicable after it is prepared, but not
14 later than 12 months after the 5th anniversary.
15 373. Review of provisions relating to recorded statements
16 (1) In this section --
17 recorded statement provisions means --
18 (a) Part 7 Division 4; and
19 (b) the Criminal Investigation Act 2006 Part 11A.
20 (2) The Minister must review the operation and effectiveness of the
21 recorded statement provisions, and prepare a report based on the
22 review, as soon as practicable after the 2nd anniversary of the
23 day on which Part 7 Division 4 comes into operation.
24 (3) The Minister must cause the report to be laid before each House
25 of Parliament as soon as practicable after it is prepared, but not
26 later than 12 months after the 2nd anniversary.
page 290
Evidence Bill 2024
Repeal, savings and transitional provisions Part 11
Repeals Division 1
s. 374
1 Part 11 -- Repeal, savings and transitional provisions
2 Division 1 -- Repeals
3 374. Evidence Act 1906 repealed
4 The Evidence Act 1906 is repealed.
5 375. Regulations under Evidence Act 1906 repealed
6 The following regulations are repealed --
7 (a) the Evidence (Admissible Reproductions)
8 Regulations 2003;
9 (b) the Evidence (Examination of witnesses outside the
10 State) Regulations 1991;
11 (c) the Evidence (Fees, Allowances and Expenses)
12 Regulations 2008;
13 (d) the Evidence (Prescribed Persons) Regulations 2005;
14 (e) the Evidence (Video and Audio Links Fees and
15 Expenses) Regulations 1999;
16 (f) the Evidence (Visual Recording of Interviews with
17 Children and Persons with Mental Impairment)
18 Regulations 2004.
19 Division 2 -- Savings and transitional provisions
20 376. Terms used
21 In this Part --
22 former Act means the Evidence Act 1906;
23 former Act recording means --
24 (a) a visual recording (as defined in section 228(1)) or an
25 audio recording made by a police officer of this State
26 before the repeal day of a relevant statement (as defined
27 in section 106H(3) of the former Act), being a relevant
28 statement that was admitted or could have been admitted
page 291
Evidence Bill 2024
Part 11 Repeal, savings and transitional provisions
Division 2 Savings and transitional provisions
s. 377
1 into evidence in a proceeding under section 106H of the
2 former Act (whether or not it has been admitted into
3 evidence under that section); or
4 (b) a visual recording (as defined in section 228(1)) of an
5 interview conducted before the repeal day, being a
6 recording that was admitted or could have been admitted
7 as evidence in a proceeding under section 106HB of the
8 former Act (whether or not it has been admitted as
9 evidence under that section); or
10 (c) a visual recording of evidence (as defined in
11 section 106A of the former Act) made before the repeal
12 day;
13 repeal day means the day on which section 374 comes into
14 operation.
15 377. Application of Act to proceedings
16 (1) A provision of this Act applies to a proceeding commenced on
17 or after the day on which the provision comes into operation.
18 (2) If a proceeding commenced before the day on which a provision
19 of this Act comes into operation, the provision applies to that
20 part of the proceeding that takes place on or after the day on
21 which the provision comes into operation, other than a hearing
22 in the proceeding that commenced before the day on which the
23 provision comes into operation.
24 (3) The former Act continues to apply to a hearing in a proceeding
25 if the hearing commenced before the repeal day and --
26 (a) continued on or after the repeal day; or
27 (b) was adjourned until the repeal day or a day after the
28 repeal day.
29 (4) This section is subject to the other provisions of this Division.
page 292
Evidence Bill 2024
Repeal, savings and transitional provisions Part 11
Savings and transitional provisions Division 2
s. 378
1 378. Documents served or given
2 (1) A reference in a provision of this Act to a document served or
3 given to a person includes a document served or given before
4 the day on which the provision comes into operation.
5 (2) A document served or given before the day on which a
6 provision of this Act comes into operation is taken to have been
7 served or given in accordance with the requirements (if any) of
8 that provision if it was served or given in accordance with the
9 requirements (if any) --
10 (a) that applied under the former Act to the service or
11 giving of the document in the circumstances provided
12 for by the provision of this Act; or
13 (b) that would have applied if the provision of this Act had
14 already come into operation.
15 (3) If a provision of this Act specifies a time limit for doing a thing
16 that starts when a document is served or given, and the
17 document was served or given before the day on which the
18 provision comes into operation, the time limit is taken to end on
19 the later of the following days --
20 (a) the day that is 21 days after the day on which the
21 provision comes into operation;
22 (b) the day on which the time limit would have ended, but
23 for this section.
24 379. Documents and other things examined, copied or viewed
25 If a provision of this Act requires a party to have been given a
26 reasonable opportunity to examine, copy or view any document
27 or other thing, that requirement is taken to have been complied
28 with if that reasonable opportunity was given before the day on
29 which the provision comes into operation in accordance with
page 293
Evidence Bill 2024
Part 11 Repeal, savings and transitional provisions
Division 2 Savings and transitional provisions
s. 380
1 any requirements of a written law that were applicable at the
2 time that it was given.
3 380. Things done between parties
4 (1) A reference in section 113 or 115 to a notice is taken to include
5 a notice of the kind referred to in that section that was given
6 before the day on which the section comes into operation.
7 (2) A reference in section 313 or 345(2) to a request is taken to
8 include a request of the kind referred to in that section that was
9 made before the day on which the section comes into operation.
10 (3) A reference in section 362(3) to an agreement is taken to
11 include an agreement of the kind referred to in that section that
12 was made before the day on which the section comes into
13 operation.
14 381. Identification evidence
15 (1) Section 134 does not apply to identification evidence that is an
16 assertion or a report of an assertion that was made before the
17 day on which the section comes into operation.
18 (2) This section does not affect the application of Part 5 to
19 identification evidence.
20 382. Privileges
21 (1) Part 4 Division 1 applies to --
22 (a) a confidential communication made before, on or after
23 the day on which that Division comes into operation;
24 and
25 (b) a confidential document prepared before, on or after the
26 day on which that Division comes into operation.
27 (2) Part 4 Division 2 applies to a protected confidence made before,
28 on or after the day on which that Division comes into operation.
page 294
Evidence Bill 2024
Repeal, savings and transitional provisions Part 11
Savings and transitional provisions Division 2
s. 383
1 (3) Part 4 Division 3 applies to a protected communication made
2 before, on or after the day on which that Division comes into
3 operation.
4 (4) Part 4 Division 4 applies to information given to a journalist
5 before, on or after the day on which that Division comes into
6 operation.
7 383. Cautioning of persons
8 (1) Section 205 does not apply to evidence of a statement made or
9 an act done by a person before the day on which that section
10 comes into operation.
11 (2) This section does not prevent a court from deciding that
12 evidence referred to in subsection (1) was obtained improperly
13 for the purposes of section 204.
14 384. Out-of-court representations
15 In Part 7, a reference to an out-of-court representation is taken
16 to include an out-of-court representation made before the day on
17 which section 235 comes into operation.
18 385. Recorded interviews
19 (1) In Part 7, a reference to a recorded interview is taken to include
20 a recorded interview made before the day on which section 251
21 comes into operation.
22 (2) For the purposes of Part 7 Division 5, if a recorded interview
23 was made before the repeal day --
24 (a) the interview in the recorded interview is taken to have
25 been conducted by a person authorised to conduct
26 recorded interviews under the interview admissibility
27 regulations if it was conducted by a person of a
28 prescribed class under section 106HA(1)(a) or (1a)(a) of
29 the former Act; and
page 295
Evidence Bill 2024
Part 11 Repeal, savings and transitional provisions
Division 2 Savings and transitional provisions
s. 386
1 (b) the recorded interview is taken to meet any other
2 requirements of the interview admissibility regulations
3 to the extent required by those regulations if, at the time
4 of recording, the manner in which the interview was
5 conducted and recorded met the prescribed requirements
6 to the prescribed extent under section 106HA(1)(b)
7 or (1a)(b) of the former Act.
8 (3) For the purposes of section 260, a reference to recorded
9 interviews that are admissible under Part 7 Division 5 or made
10 for use as evidence under that Division includes a reference to
11 recorded interviews made before the repeal day that were
12 admissible under section 106HB of the former Act or made for
13 use as evidence under that section.
14 (4) Accordingly, the power to make regulations for the purposes of
15 section 260 extends to recorded interviews referred to in
16 subsection (3).
17 386. Restrictions on use of audio evidence under former Act
18 (1) A person must not make a copy of, or otherwise reproduce, any
19 audio of a proceeding, or any part of a proceeding, heard by
20 means of an audio link under section 106K(3)(a)(ii) of the
21 former Act.
22 Penalty for this subsection: a fine of $5 000.
23 (2) A person must not play, supply or offer to supply any copy of,
24 or reproduction of, any audio of a proceeding, or any part of a
25 proceeding, heard by means of an audio link under
26 section 106K(3)(a)(ii) of the former Act.
27 Penalty for this subsection: a fine of $5 000.
28 (3) A person must not publish any audio of a proceeding, or any
29 part of a proceeding, heard by means of an audio link under
30 section 106K(3)(a)(ii) of the former Act.
31 Penalty for this subsection: imprisonment for 12 months and a
32 fine of $100 000.
page 296
Evidence Bill 2024
Repeal, savings and transitional provisions Part 11
Savings and transitional provisions Division 2
s. 387
1 387. Restrictions on use of former Act recordings
2 (1) In this section --
3 alter, a recording, has a meaning affected by section 228(1);
4 destroy, a recording, has a meaning affected by section 228(1).
5 (2) A person must not, without authority --
6 (a) be in possession of a former Act recording; or
7 (b) supply or offer to supply a former Act recording to any
8 person.
9 Penalty for this subsection: a fine of $5 000.
10 (3) A person who is in possession of a former Act recording does
11 not commit an offence against subsection (2) by virtue of being
12 in possession of the recording if --
13 (a) the person acquired that possession before this section
14 comes into operation; and
15 (b) the possession was lawful at the time the person
16 acquired it.
17 (4) A person must not, without authority, alter or destroy or permit
18 another person to alter or destroy a former Act recording that is
19 an original recording.
20 Penalty for this subsection: a fine of $5 000.
21 (5) A person must not alter a copy of a former Act recording unless
22 the person has authority to be in possession of the recording.
23 Penalty for this subsection: a fine of $5 000.
24 (6) A person must not, without authority, copy or permit another
25 person to copy a former Act recording.
26 Penalty for this subsection: a fine of $5 000.
27 (7) A person must not, without authority, play a former Act
28 recording.
29 Penalty for this subsection: a fine of $5 000.
page 297
Evidence Bill 2024
Part 11 Repeal, savings and transitional provisions
Division 2 Savings and transitional provisions
s. 388
1 (8) A person has authority to do a thing for the purposes of this
2 section only if the person --
3 (a) would have authority to do the thing concerned under
4 Part 7 Division 9 if the former Act recording were a
5 protected recording (as defined in section 290); or
6 (b) is acting as authorised by regulations made for the
7 purposes of this paragraph.
8 (9) This section applies even if a proceeding in connection with
9 which the former Act recording was made or in which the
10 former Act recording was admitted as evidence, or a hearing of
11 the proceeding, commenced, concluded or was terminated
12 before the repeal day.
13 388. Publication of former Act recordings prohibited
14 (1) A person must not publish a former Act recording except in
15 accordance with the approval of the Supreme Court.
16 Penalty for this subsection: imprisonment for 12 months and a
17 fine of $100 000.
18 (2) The Supreme Court may approve the publication of a former
19 Act recording only if satisfied that exceptional circumstances
20 justify approval being given.
21 (3) This section applies even if a proceeding in connection with
22 which the former Act recording was made or in which the
23 former Act recording was admitted as evidence, or a hearing of
24 the proceeding, commenced, concluded or was terminated
25 before the repeal day.
26 389. Playing or tendering altered recording in proceeding
27 In section 298, a reference to a protected recording is taken to
28 include a reference to a former Act recording.
page 298
Evidence Bill 2024
Repeal, savings and transitional provisions Part 11
Savings and transitional provisions Division 2
s. 390
1 390. Power to give directions about former Act recordings
2 In section 299, a reference to a protected recording is taken to
3 include a reference to a former Act recording.
4 391. Use of Justice documents
5 Section 301 extends to a Justice document prepared before the
6 day on which the section comes into operation.
7 392. Facilitation of proof of documents
8 Part 9 Divisions 3 and 4 extend to a document produced,
9 attested, verified, signed, executed, acknowledged, printed,
10 published, sealed or certified before the day or days on which
11 those Divisions come into operation.
12 393. Admission of police affidavits
13 (1) An affidavit made before the day on which section 348 comes
14 into operation that was substantially in the form of the Sixth
15 Schedule to the former Act is taken to have been made in the
16 form prescribed by the regulations for the purposes of
17 section 348.
18 (2) Accordingly, section 348 applies to the use of the affidavit in a
19 proceeding to which this Act applies.
20 394. DNA certificates given before commencement
21 Sections 350 and 351 apply to a certificate given by a forensic
22 scientist under section 50B of the former Act before the day on
23 which section 350 comes into operation in the same way as they
24 apply to a DNA profile certificate referred to in section 350.
25 395. Restrictions on publishing names of complainants
26 (1) Section 369(3) applies to the publication of information in
27 relation to a criminal proceeding on or after the day on which
28 that section comes into operation, including if a person is
page 299
Evidence Bill 2024
Part 11 Repeal, savings and transitional provisions
Division 2 Savings and transitional provisions
s. 396
1 charged with a sexual offence before the day on which that
2 section comes into operation.
3 (2) Section 369(3) does not apply to the publication of information
4 in relation to a civil proceeding that commenced before the day
5 on which that section comes into operation.
6 396. Continuation of orders, directions, leave and other things
7 done under former Act
8 (1) Any order given, direction made, leave granted or other thing
9 done by a court, judge or person acting judicially under the
10 former Act that had effect immediately before the repeal day
11 continues to have effect despite the repeal of the former Act.
12 (2) The former Act continues to apply in respect of the order,
13 direction, leave or other thing as if it were still in force.
14 (3) In particular --
15 (a) section 11A(2) and (3) of the former Act continue to
16 apply to any order made under section 11A(1) of the
17 former Act; and
18 (b) section 27(2) of the former Act continues to apply to any
19 question or inquiry that is the subject of an order under
20 section 27(1)(a) or (b) of the former Act.
21 397. Saving of self-incrimination certificates given under former
22 Act
23 A certificate given under section 11 or 12 of the former Act
24 continues to have the same effect as it would have if the former
25 Act had not been repealed.
26 398. Construction of references
27 (1) A reference in any other written law or in any instrument to the
28 former Act is to be read, from the repeal day, as a reference to
29 this Act.
page 300
Evidence Bill 2024
Repeal, savings and transitional provisions Part 11
Savings and transitional provisions Division 2
s. 399
1 (2) A reference in any other written law or in any instrument to a
2 provision of the former Act is to be read, from the repeal day, as
3 a reference to the provision of this Act that, having regard to the
4 reference and context in which the reference occurs, most nearly
5 corresponds to the provision of the former Act.
6 (3) This section does not apply in relation to a proceeding, a
7 hearing of a proceeding or other matter to which this Act does
8 not apply.
9 399. Transitional regulations
10 (1) In this section --
11 specified means specified or described in the regulations;
12 transitional matter --
13 (a) means a matter or issue of a transitional nature that
14 arises as a result of --
15 (i) the repeal of the former Act; or
16 (ii) an amendment made under Part 12; or
17 (iii) the enactment of this Act;
18 and
19 (b) includes a savings or application matter or issue.
20 (2) If there is not sufficient provision in this Division for dealing
21 with a transitional matter, regulations may prescribe anything
22 required, necessary or convenient to be prescribed in relation to
23 the matter.
24 (3) Without limiting subsection (2), regulations made for the
25 purposes of that subsection may provide that specified
26 provisions of this Act --
27 (a) do not apply to, or in relation to, a specified matter or
28 thing; or
29 (b) apply with specified modifications to, or in relation to, a
30 specified matter or thing.
page 301
Evidence Bill 2024
Part 11 Repeal, savings and transitional provisions
Division 2 Savings and transitional provisions
s. 399
1 (4) If regulations made for the purposes of subsection (2) provide
2 that a specified state of affairs is taken to have existed, or not to
3 have existed, on and from a day that is earlier than the day on
4 which the regulations are published in accordance with the
5 Interpretation Act 1984 section 41(1)(a) but not earlier than the
6 day on which this section comes into operation, the regulations
7 have effect according to their terms.
8 (5) If regulations made for the purposes of subsection (2) contain a
9 provision of a kind described in subsection (4), the provision
10 does not operate so as to --
11 (a) affect, in a manner prejudicial to any person (other than
12 the State or an authority of the State), the rights of that
13 person existing before the day of publication of those
14 regulations; or
15 (b) impose liabilities on any person (other than the State or
16 an authority of the State) in respect of anything done or
17 omitted to be done before the day of publication of those
18 regulations.
page 302
Evidence Bill 2024
Consequential amendments to other Acts Part 12
Aquatic Resources Management Act 2016 amended Division 1
s. 400
1 Part 12 -- Consequential amendments to other Acts
2 Division 1 -- Aquatic Resources Management Act 2016 amended
3 400. Act amended
4 This Division amends the Aquatic Resources Management
5 Act 2016.
6 401. Section 240 amended
7 In section 240(4) delete "Evidence Act 1906." and insert:
8
9 Evidence Act 2024.
10
11 Division 2 -- Australia and New Zealand Banking Group
12 Act 1970 amended
13 402. Act amended
14 This Division amends the Australia and New Zealand Banking
15 Group Act 1970.
16 403. Section 10 deleted
17 Delete section 10.
18 404. Section 18 deleted
19 Delete section 18.
page 303
Evidence Bill 2024
Part 12 Consequential amendments to other Acts
Division 3 Australia and New Zealand Banking Group Limited (NMRB)
Act 1991 amended
s. 405
1 Division 3 -- Australia and New Zealand Banking Group Limited
2 (NMRB) Act 1991 amended
3 405. Act amended
4 This Division amends the Australia and New Zealand Banking
5 Group Limited (NMRB) Act 1991.
6 406. Section 10 amended
7 Delete section 10(2) and (3).
8 407. Section 18 amended
9 Delete section 18(2) and (3).
10 408. Section 19 amended
11 Delete section 19(2) and (3).
12 Division 4 -- Australia and New Zealand Banking Group Limited
13 (Town & Country) Act 1995 amended
14 409. Act amended
15 This Division amends the Australia and New Zealand Banking
16 Group Limited (Town & Country) Act 1995.
17 410. Section 11 amended
18 Delete section 11(2) and (3).
19 Division 5 -- Bank of Western Australia Act 1995 amended
20 411. Act amended
21 This Division amends the Bank of Western Australia Act 1995.
22 412. Section 33 amended
23 Delete section 33(2) and (3).
page 304
Evidence Bill 2024
Consequential amendments to other Acts Part 12
Child Care Services Act 2007 amended Division 6
s. 413
1 Division 6 -- Child Care Services Act 2007 amended
2 413. Act amended
3 This Division amends the Child Care Services Act 2007.
4 414. Section 44 amended
5 In section 44 delete "Evidence Act 1906." and insert:
6
7 Evidence Act 2024.
8
9 Note: The heading to amended section 44 is to read:
10 Evidence Act 2024 not affected
11 415. Section 46A inserted
12 After section 46 insert:
13
14 46A. Interaction with protections in Evidence Act 2024
15 (1) In this section --
16 child care record has the meaning given in
17 section 46(1);
18 protected communication has the meaning given in the
19 Evidence Act 2024 section 165(1);
20 protected disclosure provisions means the Evidence
21 Act 2024 Part 4 Division 3.
22 (2) If a child care record contains a protected
23 communication --
24 (a) a party to a criminal proceeding cannot require
25 the production or disclosure of the protected
26 communication except with the leave of the
27 court in accordance with the protected
28 disclosure provisions; and
page 305
Evidence Bill 2024
Part 12 Consequential amendments to other Acts
Division 7 Children and Community Services Act 2004 amended
s. 416
1 (b) section 46(3) and (4) do not apply to the
2 production of the child care record in the
3 criminal proceeding.
4 (3) Section 46(5) to (8) apply to a child care record
5 containing a protected communication that is produced
6 in a criminal proceeding with the leave of the court
7 under the protected disclosure provisions, or to enable
8 the court to determine an application for leave under
9 the protected disclosure provisions, as if the child care
10 record had been produced in response to a requirement
11 under section 46(2).
12 (4) Section 46(5) to (8) apply to a document containing
13 any protected information (as defined in the Education
14 and Care Services National Law (Western Australia)
15 section 273(3)) that is produced in a criminal
16 proceeding with the leave of the court under the
17 protected disclosure provisions, or to enable the court
18 to determine an application for leave under the
19 protected disclosure provisions, as if --
20 (a) the document were a child care record; and
21 (b) the document had been produced in response to
22 a requirement under section 46(2).
23
24 Division 7 -- Children and Community Services Act 2004
25 amended
26 416. Act amended
27 This Division amends the Children and Community Services
28 Act 2004.
page 306
Evidence Bill 2024
Consequential amendments to other Acts Part 12
Children and Community Services Act 2004 amended Division 7
s. 417
1 417. Section 149 amended
2 Delete section 149(2) and insert:
3
4 (2) Subsection (1) is subject to --
5 (a) any order made in respect of the child under the
6 Children's Court of Western Australia Act 1988
7 section 31; and
8 (b) the Evidence Act 2024 Part 7.
9
10 418. Section 238A inserted
11 After section 238 insert:
12
13 238A. Interaction with protections in Evidence Act 2024
14 (1) In this section --
15 departmental record has the meaning given in
16 section 238(1);
17 protected communication has the meaning given in the
18 Evidence Act 2024 section 165(1);
19 protected disclosure provisions means the Evidence
20 Act 2024 Part 4 Division 3.
21 (2) If a departmental record contains a protected
22 communication --
23 (a) a party to a criminal proceeding cannot require
24 the production of the departmental record
25 except with the leave of the court in accordance
26 with the protected disclosure provisions; and
27 (b) section 238(3) and (4) do not apply to the
28 production of the departmental record in the
29 criminal proceeding.
page 307
Evidence Bill 2024
Part 12 Consequential amendments to other Acts
Division 8 Control of Vehicles (Off-road Areas) Act 1978 amended
s. 419
1 (3) Section 238(5) to (8) apply to a departmental record
2 that is produced in a criminal proceeding with the leave
3 of the court under the protected disclosure provisions,
4 or to enable the court to determine an application for
5 leave under the protected disclosure provisions, as if
6 the departmental record had been produced in response
7 to a requirement under section 238(2).
8
9 419. Section 239 amended
10 After section 239(4) insert:
11
12 (5) This section operates in addition to any restrictions on
13 the disclosure of a protected communication (as
14 defined in the Evidence Act 2024 section 165(1)) that
15 are imposed by the Evidence Act 2024 Part 4
16 Division 3.
17
18 Division 8 -- Control of Vehicles (Off-road Areas) Act 1978
19 amended
20 420. Act amended
21 This Division amends the Control of Vehicles (Off-road Areas)
22 Act 1978.
23 421. Section 28A amended
24 In section 28A(1)(b) delete "made pursuant to section 106 of the
25 Evidence Act 1906,".
page 308
Evidence Bill 2024
Consequential amendments to other Acts Part 12
Corruption, Crime and Misconduct Act 2003 amended Division 9
s. 422
1 Division 9 -- Corruption, Crime and Misconduct Act 2003
2 amended
3 422. Act amended
4 This Division amends the Corruption, Crime and Misconduct
5 Act 2003.
6 423. Section 3 amended
7 In section 3(1) delete the definition of record and insert:
8
9 record includes anything that is a document as defined
10 in the Evidence Act 2024 section 6(1) and (2);
11
12 424. Section 94 amended
13 In section 94(6) delete "under section 21 of the Evidence
14 Act 1906." and insert:
15
16 in cross-examination under section 52 of the Evidence Act 2024
17 (including any questioning permitted under section 47(1)(c) of
18 that Act).
19
20 425. Section 145 amended
21 In section 145(2) delete "under section 21 of the Evidence
22 Act 1906." and insert:
23
24 in cross-examination under section 52 of the Evidence Act 2024
25 (including any questioning permitted under section 47(1)(c) of
26 that Act).
27
page 309
Evidence Bill 2024
Part 12 Consequential amendments to other Acts
Division 10 The Criminal Code amended
s. 426
1 Division 10 -- The Criminal Code amended
2 426. Act amended
3 This Division amends The Criminal Code.
4 427. Sections 540 and 541 deleted
5 Delete sections 540 and 541.
6 Division 11 -- Criminal Investigation Act 2006 amended
7 428. Act amended
8 This Division amends the Criminal Investigation Act 2006.
9 429. Section 48 amended
10 In section 48(4) and (5) delete "section 155." and insert:
11
12 the Evidence Act 2024 section 204.
13
14 430. Section 118 amended
15 In section 118(3)(b)(ii) delete "section 155." and insert:
16
17 the Evidence Act 2024 section 204.
18
page 310
Evidence Bill 2024
Consequential amendments to other Acts Part 12
Criminal Investigation Act 2006 amended Division 11
s. 431
1 431. Part 11A inserted
2 After section 124 insert:
3
4 Part 11A -- Obtaining recorded statements for
5 use as evidence
6 124A. Terms used
7 In this Part --
8 obtain, a recorded statement, means obtain the
9 statement that is recorded in the recorded statement;
10 offence includes a suspected offence;
11 recorded statement has the meaning given in the
12 Evidence Act 2024 section 239;
13 statement admissibility regulations has the meaning
14 given in the Evidence Act 2024 section 241(1).
15 124B. Police officer may obtain recorded statement for use
16 as evidence
17 (1) A police officer may obtain a recorded statement from
18 a person who is reasonably suspected to be the victim
19 of an offence for use as evidence under the Evidence
20 Act 2024 Part 7 Division 4 in a proceeding to which
21 that Division applies.
22 (2) The police officer may obtain the recorded statement
23 only if --
24 (a) the police officer is qualified to obtain a
25 recorded statement under the statement
26 admissibility regulations; and
27 (b) the person making the statement to the police
28 officer has reached 18 years of age.
page 311
Evidence Bill 2024
Part 12 Consequential amendments to other Acts
Division 11 Criminal Investigation Act 2006 amended
s. 431
1 (3) The police officer must, before interviewing the person
2 about the offence in a recorded statement, advise the
3 person --
4 (a) that the recorded statement may be used in
5 evidence at a hearing; and
6 (b) that the person may be called to give evidence
7 in cross-examination or in further examination;
8 and
9 (c) about the access that the accused will have to
10 the recorded statement if a proceeding is
11 commenced.
12 124C. Consent of person making statement
13 (1) A police officer must not obtain a recorded statement
14 from a person for use as evidence under the Evidence
15 Act 2024 Part 7 Division 4 without the consent of the
16 person making the statement.
17 (2) The person is not obliged to give that consent.
18 124D. Recordings to be retained by police
19 (1) The Commissioner of Police must keep any recorded
20 statement obtained by a police officer for use as
21 evidence under the Evidence Act 2024 Part 7
22 Division 4, or a copy of it, in safe custody for at least
23 10 years.
24 (2) If the Supreme Court is satisfied there is good cause to
25 keep a recorded statement for more than 10 years, it
26 may order the Commissioner of Police to keep the
27 recorded statement for an additional period set by the
28 Court.
29 (3) The Commissioner of Police must ensure that the
30 prosecutor in any proceedings in which the recorded
page 312
Evidence Bill 2024
Consequential amendments to other Acts Part 12
Criminal Investigation Act 2006 amended Division 11
s. 432
1 statement may be admitted as the evidence in chief of a
2 person is given a copy of the statement.
3 (4) The Commissioner of Police may, in writing, authorise
4 a person to destroy a recorded statement after the
5 expiry of the period for which it must be kept.
6 (5) The person is authorised to destroy a recorded
7 statement in accordance with the direction of the
8 Commissioner of Police.
9 (6) The powers conferred by this section are subject to any
10 regulations referred to in the Evidence Act 2024
11 section 249.
12
13 432. Section 138 amended
14 In section 138(2)(b) delete "suspect;" and insert:
15
16 suspect that the arrested suspect does not have to say or do
17 anything but that anything the arrested suspect does say or do
18 may be used in evidence;
19
20 433. Section 154 amended
21 Delete section 154(2)(d) and insert:
22
23 (d) the court decides otherwise under the Evidence
24 Act 2024 section 204; or
25
26 434. Section 155 deleted
27 Delete section 155.
page 313
Evidence Bill 2024
Part 12 Consequential amendments to other Acts
Division 12 Criminal Procedure Act 2004 amended
s. 435
1 Division 12 -- Criminal Procedure Act 2004 amended
2 435. Act amended
3 This Division amends the Criminal Procedure Act 2004.
4 436. Section 42 amended
5 In section 42(1) in the definition of evidentiary material
6 paragraph (a)(iii) delete "Evidence Act 1906" and insert:
7
8 Evidence Act 2024
9
10 437. Section 64 amended
11 Delete section 64(1)(d) and insert:
12
13 (d) permit the accused to make any admission or
14 give any consent under the Evidence Act 2024
15 section 358;
16
17 438. Section 88 amended
18 (1) In section 88(1) in the definition of proceedings delete
19 "Evidence Act 1906," and insert:
20
21 Evidence Act 2024,
22
23 (2) After section 88(5) insert:
24
25 (5A) The operation of this section is subject to the Evidence
26 Act 2024.
27
page 314
Evidence Bill 2024
Consequential amendments to other Acts Part 12
Criminal Procedure Act 2004 amended Division 12
s. 439
1 439. Section 98 amended
2 Delete section 98(2)(g) and insert:
3
4 (g) may permit the accused to make any admission
5 or give any consent under the Evidence
6 Act 2024 section 358;
7
8 440. Section 137A amended
9 Delete section 137A(a) and insert:
10
11 (a) section 137B; and
12 (aaa) the Evidence Act 2024 sections 166, 236(10),
13 242(3), 254(3), 291(1) and 387(2); and
14
15 441. Section 137B inserted
16 After section 137A insert:
17
18 137B. Restrictions on disclosure of recorded evidence
19 (1) In this section --
20 evidentiary material has the meaning given by
21 section 42;
22 serve, a person, means to serve the person in
23 accordance with Schedule 2 clause 2, 3 or 4.
24 (2) A prosecutor must not serve on an accused a copy of
25 any recording or recorded statement if --
26 (a) it is a recording to which Schedule 3 clause 8
27 applies; or
page 315
Evidence Bill 2024
Part 12 Consequential amendments to other Acts
Division 12 Criminal Procedure Act 2004 amended
s. 441
1 (b) the accused is not entitled to be in possession of
2 the recording or recorded statement under the
3 Evidence Act 2024 section 236(10), 242(3),
4 254(3), 291(1) or 387(2).
5 (3) If another provision of this Act requires a prosecutor to
6 serve on an accused evidentiary material that is a copy
7 of a recording or a recorded statement, and
8 subsection (2) applies to the copy of the recording or
9 recorded statement, the prosecutor must comply with
10 that requirement by --
11 (a) serving a copy of the recording or recorded
12 statement on the accused's legal practitioner; or
13 (b) if the accused is not represented by a legal
14 practitioner --
15 (i) serving a transcript of the recording or
16 recorded statement on the accused; and
17 (ii) giving the accused a reasonable
18 opportunity to view the recording or
19 recorded statement in accordance with
20 any applicable requirements of the
21 Evidence Act 2024.
22 (4) A prosecutor who complies with subsection (3) is
23 taken, for the purposes of this Act, to have served a
24 copy of the relevant evidentiary material on the
25 accused.
26 (5) This section applies to any relevant authorised officer
27 (as defined in section 80) who is required by this Act to
28 serve evidentiary material on an accused in the same
29 way as it applies to a prosecutor.
30
page 316
Evidence Bill 2024
Consequential amendments to other Acts Part 12
Criminal Procedure Act 2004 amended Division 12
s. 442
1 442. Section 144 amended
2 In section 144(2) delete "Evidence Act 1906" and insert:
3
4 Evidence Act 2024
5
6 443. Section 168 amended
7 Delete section 168(4) and insert:
8
9 (4) Subsection (1) does not affect the operation of the
10 Evidence Act 2024 sections 347 to 349.
11
12 444. Section 171 amended
13 (1) In section 171(4):
14 (a) in paragraph (c) delete "offence." and insert:
15
16 offence;
17
18 (b) after paragraph (c) insert:
19
20 (d) order that robes not be worn by any judge or
21 magistrate, or any legal practitioners, during the
22 whole of the proceedings, or a part of them
23 specified by the court.
24
25 (2) After section 171(6) insert:
26
27 (6A) An order made under subsection (4)(a) may allow any
28 persons or class of persons excluded or directed to
page 317
Evidence Bill 2024
Part 12 Consequential amendments to other Acts
Division 12 Criminal Procedure Act 2004 amended
s. 445
1 leave to observe or listen to the whole or part of the
2 proceedings by means of a video link or audio link.
3
4 445. Section 172 amended
5 In section 172(2) delete "Evidence Act 1906" and insert:
6
7 Evidence Act 2024
8
9 446. Schedule 3 clause 2 replaced
10 Delete Schedule 3 clause 2 and insert:
11
12 2. Evidence Act 2024 not affected
13 This Schedule is in addition to and does not limit the
14 operation of the Evidence Act 2024.
15
16 447. Schedule 3 clause 6 amended
17 Delete Schedule 3 clause 6(3) and insert:
18
19 (3) A court conducting an examination of a witness under this
20 clause is not prevented from making orders under the
21 Evidence Act 2024 Part 7 in relation to the witness.
22
23 448. Schedule 3 clause 7 amended
24 In Schedule 3 clause 7(1):
25 (a) in paragraph (e) delete "witness." and insert:
26
27 witness; or
28
page 318
Evidence Bill 2024
Consequential amendments to other Acts Part 12
Criminal Procedure Act 2004 amended Division 12
s. 449
1 (b) after paragraph (e) insert:
2
3 (f) that all the parties consent to the statement or
4 recording being admitted as the whole or part of the
5 evidence in chief of the witness and that the witness
6 is available to give further evidence in the
7 proceeding if required.
8
9 449. Schedule 3 clause 8 inserted
10 After Schedule 3 clause 7 insert:
11
12 8. Access of accused to some recorded evidence restricted
13 (1) In this clause --
14 special procedure for giving evidence has the meaning
15 given in the Evidence Act 2024 section 228(1).
16 (2) A court that conducts an examination under clause 6 must
17 not give to the accused a copy of an electronic recording of
18 a witness's evidence at the examination if --
19 (a) the evidence of the witness at the examination is
20 given using a special procedure for giving evidence;
21 or
22 (b) the court considers that any evidence of the witness
23 at trial may be given using a special procedure for
24 giving evidence.
25 (3) If this clause prevents the court from giving an accused a
26 copy of an electronic recording of a witness's evidence, the
27 court must comply with clause 6(7) by --
28 (a) giving a copy of the recording to the accused's legal
29 practitioner; or
30 (b) if the accused is not represented by a legal
31 practitioner, giving a transcript of the recording to
32 the accused.
page 319
Evidence Bill 2024
Part 12 Consequential amendments to other Acts
Division 13 High Risk Serious Offenders Act 2020 amended
s. 450
1 (4) If an accused is not given a copy of an electronic recording
2 of evidence given at an examination under clause 6 because
3 the accused is not represented by a legal practitioner, the
4 recording of evidence is not admissible in evidence under
5 clause 7 unless the court is satisfied that the prosecutor has
6 given the accused a reasonable opportunity to view the
7 recording (if it is an audio visual recording) or to hear the
8 recording (if it is an audio recording).
9
10 Division 13 -- High Risk Serious Offenders Act 2020 amended
11 450. Act amended
12 This Division amends the High Risk Serious Offenders
13 Act 2020.
14 451. Section 39 amended
15 Delete section 39(5)(a) and insert:
16
17 (a) the Evidence Act 2024 sections 166, 236(10),
18 242(3), 254(3), 291(1) and 387(2); and
19
20 452. Section 69 amended
21 Delete section 69(3)(d) and insert:
22
23 (d) a decision under the Evidence Act 2024
24 section 169 to give or refuse leave to disclose
25 or require disclosure of a protected
26 communication in or in connection with a
27 restriction order application;
28
page 320
Evidence Bill 2024
Consequential amendments to other Acts Part 12
Licensed Surveyors Act 1909 amended Division 14
s. 453
1 Division 14 -- Licensed Surveyors Act 1909 amended
2 453. Act amended
3 This Division amends the Licensed Surveyors Act 1909.
4 454. Section 8B amended
5 In section 8B delete "section 11 of the Evidence Act 1906," and
6 insert:
7
8 the Evidence Act 2024 section 186,
9
10 455. Third Schedule amended
11 In the Third Schedule delete "And I make this solemn declaration
12 by virtue of section 106 of the Evidence Act 1906.".
13 Division 15 -- Restraining Orders Act 1997 amended
14 456. Act amended
15 This Division amends the Restraining Orders Act 1997.
16 457. Section 53B replaced
17 Delete section 53B and insert:
18
19 53B. Evidence of children
20 (1) In this section --
21 pre-recording procedure has the meaning given in the
22 Evidence Act 2024 section 228(1);
23 video link separation procedure has the meaning given
24 in the Evidence Act 2024 section 3(1).
page 321
Evidence Bill 2024
Part 12 Consequential amendments to other Acts
Division 16 Spent Convictions Act 1988 amended
s. 458
1 (2) This section applies if --
2 (a) in accordance with section 53A, a child is
3 giving oral evidence in any proceedings under
4 this Act; and
5 (b) the necessary facilities and equipment for that
6 evidence to be given using a video link
7 separation procedure are available.
8 (3) The child's evidence must be given using a video link
9 separation procedure.
10 (4) This section does not apply if the evidence of the child
11 is given using a pre-recording procedure.
12
13 Division 16 -- Spent Convictions Act 1988 amended
14 458. Act amended
15 This Division amends the Spent Convictions Act 1988.
16 459. Section 14 replaced
17 Delete section 14 and insert:
18
19 14. Division 4 does not apply to proceedings in which
20 laws of evidence apply
21 (1) Division 4 does not apply --
22 (a) to a proceeding in a court or tribunal that
23 applies the laws of evidence; or
24 (b) to the making of any decision by a court or
25 tribunal that applies the laws of evidence.
26 (2) Division 4 does not affect the operation of the Evidence
27 Act 2024, in particular section 347.
page 322
Evidence Bill 2024
Consequential amendments to other Acts Part 12
State Administrative Tribunal Act 2004 amended Division 17
s. 460
1 (3) A court, tribunal or judge that admits evidence of a
2 spent conviction must take any steps that are
3 reasonably available to prevent or minimise publication
4 of a spent conviction.
5 14A. Division 4 does not affect proceedings under this
6 Act
7 Division 4 does not affect the Commissioner of Police
8 acting under section 7.
9
10 Division 17 -- State Administrative Tribunal Act 2004 amended
11 460. Act amended
12 This Division amends the State Administrative Tribunal
13 Act 2004.
14 461. Section 32 amended
15 In section 32(2) delete "Evidence Act 1906" and insert:
16
17 Evidence Act 2024
18
19 Division 18 -- Supreme Court Act 1935 amended
20 462. Act amended
21 This Division amends the Supreme Court Act 1935.
22 463. Section 172 deleted
23 Delete section 172.
page 323
Evidence Bill 2024
Part 12 Consequential amendments to other Acts
Division 19 The Commercial Bank of Australia Limited (Merger) Act 1982
amended
s. 464
1 Division 19 -- The Commercial Bank of Australia Limited
2 (Merger) Act 1982 amended
3 464. Act amended
4 This Division amends The Commercial Bank of Australia
5 Limited (Merger) Act 1982.
6 465. Section 11 amended
7 Delete section 11(2) and (3).
8 Division 20 -- The Commercial Banking Company of Sydney
9 Limited (Merger) Act 1982 amended
10 466. Act amended
11 This Division amends The Commercial Banking Company of
12 Sydney Limited (Merger) Act 1982.
13 467. Section 10 amended
14 Delete section 10(2) and (3).
15 Division 21 -- Westpac Banking Corporation (Challenge Bank)
16 Act 1996 amended
17 468. Act amended
18 This Division amends the Westpac Banking Corporation
19 (Challenge Bank) Act 1996.
20 469. Section 15 amended
21 Delete section 15(2) and (3).
page 324
Evidence Bill 2024
Consequential amendments to other Acts Part 12
Other Acts amended Division 22
s. 470
1 Division 22 -- Other Acts amended
2 470. Various references to Evidence Act 1906 amended
3 (1) In the provisions listed in the Table delete "Evidence Act 1906"
4 and insert:
5
6 Evidence Act 2024
7
8 Table
Architects Act 2004 s. 75(6)
Biodiversity Conservation s. 254
Act 2016
Biosecurity and Agriculture s. 124
Management Act 2007
Building Act 2011 s. 137
Building Services (Complaint s. 108(4)
Resolution and Administration)
Act 2011
Building Services (Registration) s. 103(4)
Act 2011
Cat Act 2011 s. 75(3)
Dangerous Goods Safety s. 58(7)
Act 2004
Emergency Management s. 99(4)
Act 2005
page 325
Evidence Bill 2024
Part 12 Consequential amendments to other Acts
Division 22 Other Acts amended
s. 470
Energy Operators (Powers) s. 87(4)(a)
Act 1979
Family Court Act 1997 s. 202H(2)
s. 202H(6) def. of excluded
rules of evidence
s. 219AA
Family Provision Act 1972 s. 21A(13)
Health Services Act 2016 s. 225
Legislation Act 2021 s. 7 note
Liquor Control Act 1988 s. 16(7)
Local Government Act 1995 s. 9.32
Medicines and Poisons Act 2014 s. 125(3)
National Disability Insurance s. 77(6)
Scheme (Worker Screening)
Act 2020
State Records Act 2000 s. 79(6)
Teacher Registration Act 2012 s. 120
Tobacco Products Control s. 113(6)
Act 2006
Veterinary Practice Act 2021 s. 148
Water Services Act 2012 s. 206
Waterways Conservation s. 75(9)(a)
Act 1976
page 326
Evidence Bill 2024
Consequential amendments to other Acts Part 12
Other Acts amended Division 22
s. 470
Western Australian Marine s. 126(3)
Act 1982
Workers Compensation and s. 336(2)
Injury Management Act 2023
Working with Children s. 44(6)
(Screening) Act 2004
1 (2) Amend the provisions listed in the Table as set out in the Table.
2 Table
Provision Delete Insert
1. Architects Act 2004
s. 13 Evidence Act 1906 Evidence Act 2024
section 11 section 186
2. Auditor General Act 2006
s. 36(4) Evidence Act 1906 Evidence Act 2024
section 21 section 52
3. Civil Liability Act 2002
s. 3A(1) Table Evidence Act 1906 Evidence Act 2024
it. 1(b) section 36A section 3(1)
4. Community Protection (Offender Reporting) Act 2004
s. 85G(1) def. of Evidence Act 1906 Evidence Act 2024
prescribed offence section 36A section 3(1)
page 327
Evidence Bill 2024
Part 12 Consequential amendments to other Acts
Division 22 Other Acts amended
s. 470
Provision Delete Insert
5. Courts and Tribunals (Electronic Processes Facilitation)
Act 2013
s. 6(1)(j) Evidence Act 1906 Evidence Act 2024
(other than
section 19B)
6. Criminal Appeals Act 2004
s. 40(1)(d) Evidence Act 1906 Evidence Act 2024
section 9 section 28
7. District Court of Western Australia Act 1969
s. 5(3) within the meaning for the purposes of the
of the term "Court" Evidence Act 2024 and
in the Evidence
Act 1906, and
8. Education Service Providers (Full Fee Overseas Students)
Registration Act 1991
s. 33 section 11 of the the Evidence Act 2024
Evidence Act 1906 section 186
9. Fair Trading Act 2010
s. 86(2) Evidence Act 1906 Evidence Act 2024
section 11 section 186
10. Finance Brokers Control Act 1975
s. 18E section 11 of the the Evidence Act 2024
Evidence Act 1906 section 186
page 328
Evidence Bill 2024
Consequential amendments to other Acts Part 12
Other Acts amended Division 22
s. 470
Provision Delete Insert
11. Magistrates Court (Civil Proceedings) Act 2004
s. 16(1)(l) Evidence Act 1906 Evidence Act 2024
section 120 section 3(1)
12. Mental Health Act 2014
s. 4 def. of Evidence Act 1906 Evidence Act 2024
document section 79B section 6
13. Oaths, Affidavits and Statutory Declarations Act 2005
s. 7(3) Evidence Act 1906 Evidence Act 2024
section 120 section 3(1)
14. Petroleum Products Pricing Act 1983
s. 24(2) section 11 of the the Evidence Act 2024
Evidence Act 1906 section 186
15. Royal Commissions Act 1968
s. 4 def. of section 79B of the the Evidence Act 2024
documents Evidence Act 1906 section 6
s. 8A(8) section 21 of the the Evidence Act 2024
Evidence Act 1906 section 52
16. Teacher Registration Act 2012
s. 48C(7) Evidence Act 1906 Evidence Act 2024
section 11 section 186
s. 68A(5)
s. 77B(5)
page 329
Evidence Bill 2024
Part 12 Consequential amendments to other Acts
Division 22 Other Acts amended
s. 470
Provision Delete Insert
s. 118(3A) Evidence Act 1906 Evidence Act 2024
section 36C section 369
17. Transfer of Land Act 1893
s. 9(2) section 55 or 56 of the Evidence Act 2024
the Evidence section 328
Act 1906
18. Veterinary Practice Act 2021
s. 95(4) Evidence Act 1906 Evidence Act 2024
section 11 section 186
s. 116(4)
1 Note: In the Acts listed in the Table, the headings to the amended sections
2 listed in the Table are to read as set out in the Table.
3 Table
Amended section Section heading
1. Biodiversity Conservation Act 2016
s. 254 Provisions in addition to Evidence Act 2024
2. Biosecurity and Agriculture Management Act 2007
s. 124 Provisions in addition to Evidence Act 2024
3. Building Act 2011
s. 137 Evidence Act 2024 not excluded
4. Family Court Act 1997
s. 219AA Evidence Act 2024 not excluded
5. Health Services Act 2016
s. 225 Evidence Act 2024 not affected
6. Local Government Act 1995
s. 9.32 Evidence Act 2024 not excluded
page 330
Evidence Bill 2024
Consequential amendments to other Acts Part 12
Other Acts amended Division 22
s. 470
Amended section Section heading
7. Teacher Registration Act 2012
s. 120 Evidence Act 2024 not affected
8. Veterinary Practice Act 2021
s. 148 Evidence Act 2024 not affected
9. Water Services Act 2012
s. 206 Provisions in addition to Evidence Act 2024
1
page 331
Evidence Bill 2024
Defined terms
Defined terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined term Provision(s)
accused ............................................................................................................. 3(1)
acquittal........................................................................................................ 347(1)
admission ......................................................................................................... 3(1)
affected child................................................................................................ 228(1)
AFP employee.............................................................................................. 349(1)
AFP special member .................................................................................... 349(1)
agreed fact .................................................................................................... 362(1)
aircraft .......................................................................................................... 355(1)
alleged sexual interest or act ........................................................................ 114(6)
alter ................................................................................................. 228(1), 387(1)
applicable court ............................................................................................ 347(1)
asserted fact........................................................................................... 3(1), 72(1)
assistance application ...................................................................... 221(1), 222(1)
assistance order ............................................................................... 221(1), 223(1)
audio link ......................................................................................................... 3(1)
Australia ........................................................................................................... 3(1)
Australian court................................................................................................ 3(1)
Australian law .................................................................................................. 3(1)
Australian or overseas proceeding ................................................................... 3(1)
Australian Parliament....................................................................................... 3(1)
Australian Statistician .................................................................................. 330(1)
authorised officer ......................................................................................... 351(1)
authorised person ......................................................................................... 342(1)
business ....................................................................................... 3(1), 4(1) and (2)
case .................................................................................................................. 3(1)
child ................................................................................................................. 3(1)
child protection proceeding .......................................................................... 228(1)
child sexual offence ..................................................................................... 114(1)
civil proceeding................................................................................................ 3(1)
client ................................................................................................... 3(1), 148(1)
co-accused........................................................................................................ 3(1)
coincidence evidence ....................................................................................... 3(1)
coincidence rule ............................................................................................... 3(1)
Commonwealth record ................................................................................. 325(1)
communication directions .................................................................... 284, 285(1)
complainant...................................................................................................... 3(1)
confidant ...................................................................................................... 158(1)
confidential communication ......................................................................... 148(1)
page 332
Evidence Bill 2024
Defined terms
confidential document .................................................................................. 148(1)
copy..................................................................................................................... 58
corresponding legislation .................................................................................. 207
corresponding provision.................................................................. 187(5), 189(5)
counselling communication ............................................................ 164(1), 165(2)
counsellor ..................................................................................................... 165(2)
counsels........................................................................................... 164(1), 165(4)
court ................................................................................................................. 3(1)
credibility ......................................................................................................... 3(1)
credibility evidence ........................................................................................... 119
credibility rule .................................................................................................. 3(1)
criminal or identified organisation ................................................................... 3(1)
criminal or identified organisation offence ...................................................... 3(1)
criminal proceeding ......................................................................................... 3(1)
cross-examination ................................................................................... 3(1), 5(2)
cross-examiner ................................................................................................. 3(1)
delay ................................................................................................................. 3(1)
Department................................................................................................... 301(1)
destroy............................................................................................. 228(1), 387(1)
Director of Public Prosecutions ........................................................................ 290
disability .......................................................................................................... 3(1)
disallowable question ..................................................................................... 50(1)
discloses .......................................................................................... 164(1), 166(2)
disclosure certificate ............................................................................ 185, 188(7)
disclosure order ................................................................................................. 185
disclosure requirement ................................................................................. 183(1)
dispute .......................................................................................................... 194(1)
DNA profile ................................................................................................. 350(1)
DNA profile certificate ................................................................... 350(3), 351(1)
document..................................................................................... 3(1), 6(1) and (2)
document in question .......................................................................................... 58
duties Act ....................................................................................................... 62(1)
electronic communication ................................................................................ 3(1)
evidence certificate .............................................................................. 185, 186(7)
evidence of family violence ......................................................................... 137(1)
examination..................................................................................... 216(1), 350(1)
examination in chief................................................................................ 3(1), 5(1)
excluded party ...................................................................................... 275, 276(1)
exclusion order ..................................................................................... 179, 181(1)
expert ........................................................................................................... 138(1)
expert certificate .......................................................................................... 346(1)
external Territory ............................................................................................. 3(1)
extra-territorial examination order .................................................. 216(1), 217(1)
family member .................................................................................................. 136
page 333
Evidence Bill 2024
Defined terms
family violence ................................................................................................ 3(1)
family violence direction matter .................................................................. 147(1)
family violence offence.................................................................................... 3(1)
foreign court..................................................................................................... 3(1)
forensic scientist .......................................................................................... 350(1)
former Act ......................................................................................................... 376
former Act recording......................................................................................... 376
government or official gazette ......................................................................... 3(1)
government or official website ........................................................................ 3(1)
ground rules hearing ........................................................................... 3(1), 286(1)
harm ................................................................................................................. 3(1)
hearsay rule ...................................................................................................... 3(1)
help-seeking behaviour ..................................................................................... 136
identification evidence ............................................................................. 3(1), 133
identification record .......................................................................................... 133
immunity certificate ..................................................................................... 191(4)
incriminate ........................................................................................................ 185
inference ...................................................................................................... 104(1)
inferior court ................................................................................................ 216(1)
informant........................................................................................................... 179
interview admissibility regulations ...................................................... 251, 253(1)
investigating official ........................................................................................ 3(1)
joint sitting ..................................................................................................... 25(1)
journalist ........................................................................................................... 179
journalist privilege ............................................................................................ 179
judge ................................................................................................................ 3(1)
judicial authority .......................................................................................... 216(1)
Justice document .......................................................................................... 301(1)
law............................................................................................. 3(1), 10(1) and (2)
leading question ............................................................................................... 3(1)
legal counsel .................................................................................................... 3(1)
legal representative ...................................................................................... 148(1)
matter raised by evidence............................................................................... 55(1)
mental impairment ........................................................................................... 3(1)
minister of religion ........................................................................................... 3(1)
misconduct ........................................................................................................ 179
news medium .................................................................................................... 179
obtain ................................................................................................................ 239
offence ............................................................................................................. 3(1)
office holder ................................................................................................. 327(1)
offspring ................................................................................................ 3(1), 13(1)
opinion rule ...................................................................................................... 3(1)
original document .......................................................................................... 62(1)
out-of-court representation................................................................... 228(1), 235
page 334
Evidence Bill 2024
Defined terms
parent .................................................................................................... 3(1), 13(2)
participating jurisdiction ................................................................................... 207
party .................................................................................................... 3(1), 148(1)
person acting judicially .................................................................................... 3(1)
personal knowledge of the asserted fact............................................. 75(2) and (3)
police-assisted identification evidence.............................................................. 133
police officer .................................................................................................... 3(1)
postal article ................................................................................................. 338(1)
power .............................................................................................. 156(1), 194(1)
preliminary question .................................................................................... 360(1)
pre-recording order .............................................................................. 261, 262(1)
pre-recording procedure ............................................................................... 228(1)
previous representation ......................................................................... 3(1), 75(1)
prior consistent statement ................................................................................ 3(1)
prior inconsistent statement ............................................................................. 3(1)
privilege affidavit ......................................................................................... 188(2)
probative value ................................................................................................. 3(1)
proceeding........................................................................................................ 3(1)
prosecutor ........................................................................................................ 3(1)
protected communication .................................................................... 3(1), 165(1)
protected confidence .................................................................................... 158(1)
protected confider ........................................................................................ 158(1)
protected identity information ...................................................................... 158(1)
protected person ........................................................................................... 164(1)
protected recording ........................................................................................... 290
public document.......................................................................... 3(1), 6(3) and (4)
publish.............................................................................................................. 3(1)
recognised court ................................................................................................ 207
recorded interview ............................................................................... 228(1), 251
recorded statement ............................................................................... 228(1), 239
recorded statement provisions ...................................................................... 373(1)
re-examination ........................................................................................ 3(1), 5(3)
related proceeding ............................................................................................ 3(1)
relevant delay ............................................................................................... 309(1)
relevant person ............................................................................................. 188(1)
religious confession ..................................................................................... 200(1)
repeal day .......................................................................................................... 376
representation ................................................................................................... 3(1)
request .................................................................................................. 221(1), 313
requesting court............................................................................................ 221(1)
requesting party................................................................................................. 313
require disclosure ............................................................................ 164(1), 166(3)
safety option...................................................................................................... 136
screening procedure ......................................................................................... 3(1)
page 335
Evidence Bill 2024
Defined terms
seal ................................................................................................................... 3(1)
sexual abuse ..................................................................................................... 3(1)
sexual offence .................................................................................................. 3(1)
sexual offence complainant.............................................................................. 3(1)
shipping document ....................................................................................... 355(1)
special hearing .................................................................................................. 261
special procedure for giving evidence.......................................................... 228(1)
special witness .................................................................................... 3(1), 228(1)
specified ....................................................................................................... 399(1)
stamped .......................................................................................................... 62(1)
statement admissibility regulations ...................................................... 239, 241(1)
superior court ................................................................................................... 3(1)
support animal.............................................................................................. 232(1)
supporting affidavit ...................................................................................... 167(1)
support person .............................................................................................. 164(1)
tendency evidence ............................................................................................ 3(1)
tendency rule .................................................................................................... 3(1)
tendency sexual interest or act ..................................................................... 114(6)
thing ............................................................................................................. 350(1)
third party....................................................................................................... 98(1)
traditional laws and customs ............................................................................ 3(1)
transitional matter ........................................................................................ 399(1)
tribunal ............................................................................................................. 3(1)
vehicle .......................................................................................................... 355(1)
vessel............................................................................................................ 355(1)
video link ......................................................................................................... 3(1)
video link separation order................................................................... 275, 276(1)
video link separation procedure ....................................................................... 3(1)
visual recording............................................................................................ 228(1)
WA court ......................................................................................................... 3(1)
WA tribunal ..................................................................................................... 3(1)
witness ............................................................................................................. 3(1)
working day .................................................................................... 338(1), 351(1)
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