EVIDENCE ACT 1995

New South Wales Consolidated Acts

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- As at 25 November 2022
- Act 25 of 1995

TABLE OF PROVISIONS

Long Title

CHAPTER 1 - PRELIMINARY
Note

PART 1.1 - FORMAL MATTERS

1. Name of Act
2. Commencement
3. Definitions

PART 1.2 - APPLICATION OF THIS ACT

4. Courts and proceedings to which Act applies
5. Extended application of certain provisions
6. Territories
7. Act binds Crown
8. Operation of other Acts
9. Application of common law and equity
10. Parliamentary privilege preserved
11. General powers of a court

CHAPTER 2 - ADDUCING EVIDENCE
Note

PART 2.1 - WITNESSES

Division 1 - Competence and compellability of witnesses

12. Competence and compellability
13. Competence: lack of capacity
14. Compellability: reduced capacity
15. Compellability: Sovereign and others
16. Competence and compellability: judges and jurors
17. Competence and compellability: defendants in criminal proceedings
18. Compellability of spouses and others in criminal proceedings generally
19. Compellability of spouses and others in certain criminal proceedings
20. Comment on failure to give evidence

Division 2 - Oaths and affirmations

21. Sworn evidence to be on oath or affirmation
22. Interpreters to act on oath or affirmation
23. Choice of oath or affirmation
24. Requirements for oaths
24A. Alternative oath
25. Rights to make unsworn statements unaffected

Division 3 - General rules about giving evidence

26. Court's control over questioning of witnesses
27. Parties may question witnesses
28. Order of examination in chief, cross-examination and re-examination
29. Manner and form of questioning witnesses and their responses
30. Interpreters
31. Deaf and mute witnesses
32. Attempts to revive memory in court
33. Evidence given by police officers
34. Attempts to revive memory out of court
35. Effect of calling for production of documents
36. Person may be examined without subpoena or other process

Division 4 - Examination in chief and re-examination

37. Leading questions
38. Unfavourable witnesses
39. Limits on re-examination

Division 5 - Cross-examination

40. Witness called in error
41. Improper questions
42. Leading questions
43. Prior inconsistent statements of witnesses
44. Previous representations of other persons
45. Production of documents
46. Leave to recall witnesses

PART 2.2 - DOCUMENTS

47. Definitions
48. Proof of contents of documents
49. Documents in foreign countries
50. Proof of voluminous or complex documents
51. Original document rule abolished

PART 2.3 - OTHER EVIDENCE

52. Adducing of other evidence not affected
53. Views
54. Views to be evidence

CHAPTER 3 - ADMISSIBILITY OF EVIDENCE
Note

PART 3.1 - RELEVANCE

55. Relevant evidence
56. Relevant evidence to be admissible
57. Provisional relevance
58. Inferences as to relevance

PART 3.2 - HEARSAY

Division 1 - The hearsay rule

59. The hearsay rule--exclusion of hearsay evidence
60. Exception: evidence relevant for a non-hearsay purpose
61. Exceptions to the hearsay rule dependent on competency

Division 2 - "First-hand" hearsay

62. Restriction to "first-hand" hearsay
63. Exception: civil proceedings if maker not available
64. Exception: civil proceedings if maker available
65. Exception: criminal proceedings if maker not available
66. Exception: criminal proceedings if maker available
66A. Exception: contemporaneous statements about a person's health etc
67. Notice to be given
68. Objections to tender of hearsay evidence in civil proceedings if maker available

Division 3 - Other exceptions to the hearsay rule

69. Exception: business records
70. Exception: contents of tags, labels and writing
71. Exception: electronic communications
72. Exception: Aboriginal and Torres Strait Islander traditional laws and customs
73. Exception: reputation as to relationships and age
74. Exception: reputation of public or general rights
75. Exception: interlocutory proceedings

PART 3.3 - OPINION

76. The opinion rule
77. Exception: evidence relevant otherwise than as opinion evidence
78. Exception: lay opinions
78A. Exception: Aboriginal and Torres Strait Islander traditional laws and customs
79. Exception: opinions based on specialised knowledge
80. Ultimate issue and common knowledge rules abolished

PART 3.4 - ADMISSIONS
Note

81. Hearsay and opinion rules: exception for admissions and related representations
82. Exclusion of evidence of admissions that is not first-hand
83. Exclusion of evidence of admissions as against third parties
84. Exclusion of admissions influenced by violence and certain other conduct
85. Criminal proceedings: reliability of admissions by defendants
86. Exclusion of records of oral questioning
87. Admissions made with authority
88. Proof of admissions
89. Evidence of silence generally
89A. Evidence of silence in criminal proceedings for serious indictable offences
90. Discretion to exclude admissions

PART 3.5 - EVIDENCE OF JUDGMENTS AND CONVICTIONS

91. Exclusion of evidence of judgments and convictions
92. Exceptions
93. Savings

PART 3.6 - TENDENCY AND COINCIDENCE

94. Application
95. Use of evidence for other purposes
96. Failure to act
97. The tendency rule
97A. Admissibility of tendency evidence in proceedings involving child sexual offences
98. The coincidence rule
99. Requirements for notices
100. Court may dispense with notice requirements
101. Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

PART 3.7 - CREDIBILITY

Division 1 - Credibility evidence

101A. Credibility evidence

Division 2 - Credibility of witnesses

102. The credibility rule
103. Exception: cross-examination as to credibility
104. Further protections: cross-examination as to credibility
105. Further protections: defendants making unsworn statements
106. Exception: rebutting denials by other evidence
107. (Repealed)
108. Exception: re-establishing credibility

Division 3 - Credibility of persons who are not witnesses

108A. Admissibility of evidence of credibility of person who has made a previous representation
108B. Further protections: previous representations of an accused who is not a witness

Division 4 - Persons with specialised knowledge

108C. Exception: evidence of persons with specialised knowledge

PART 3.8 - CHARACTER

109. Application
110. Evidence about character of accused persons
111. Evidence about character of co-accused
112. Leave required to cross-examine about character of accused or co-accused

PART 3.9 - IDENTIFICATION EVIDENCE
Note

113. Application of Part
114. Exclusion of visual identification evidence
115. Exclusion of evidence of identification by pictures
116. Directions to jury

PART 3.10 - PRIVILEGES

Division 1 - Client legal privilege

117. Definitions
118. Legal advice
119. Litigation
120. Unrepresented parties
121. Loss of client legal privilege: generally
122. Loss of client legal privilege: consent and related matters
123. Loss of client legal privilege: defendants
124. Loss of client legal privilege: joint clients
125. Loss of client legal privilege: misconduct
126. Loss of client legal privilege: related communications and documents

Division 1A - Professional confidential relationship privilege

126A. Definitions
126B. Exclusion of evidence of protected confidences
126C. Loss of professional confidential relationship privilege: consent
126D. Loss of professional confidential relationship privilege: misconduct
126E. Ancillary orders
126F. Application of Division

Division 1B - Sexual assault communications privilege
Note

126G. Definitions
126H. Exclusion of evidence of protected sexual assault communications
126I. Application of Division

Division 1C - Journalist privilege

126J. Definitions
126K. Journalist privilege relating to identity of informant
126L. Application of Division

Division 2 - Other privileges

127. Religious confessions
128. Privilege in respect of self-incrimination in other proceedings
128A. Privilege in respect of self-incrimination--exception for certain orders etc

Division 3 - Evidence excluded in the public interest

129. Exclusion of evidence of reasons for judicial etc decisions
130. Exclusion of evidence of matters of state
131. Exclusion of evidence of settlement negotiations

Division 4 - General

131A. Application of Part to preliminary proceedings of courts
132. Court to inform of rights to make applications and objections
133. Court may inspect etc documents
134. Inadmissibility of evidence that must not be adduced or given

PART 3.11 - DISCRETIONARY AND MANDATORY EXCLUSIONS

135. General discretion to exclude evidence
136. General discretion to limit use of evidence
137. Exclusion of prejudicial evidence in criminal proceedings
138. Exclusion of improperly or illegally obtained evidence
139. Cautioning of persons

CHAPTER 4 - PROOF
Note

PART 4.1 - STANDARD OF PROOF

140. Civil proceedings: standard of proof
141. Criminal proceedings: standard of proof
142. Admissibility of evidence: standard of proof

PART 4.2 - JUDICIAL NOTICE

143. Matters of law
144. Matters of common knowledge
145. Certain Crown certificates

PART 4.3 - FACILITATION OF PROOF

Division 1 - General

146. Evidence produced by processes, machines and other devices
147. Documents produced by processes, machines and other devices in the course of business
148. Evidence of certain acts of justices, Australian lawyers and notaries public
149. Attestation of documents
150. Seals and signatures
151. Seals of bodies established under State law
152. Documents produced from proper custody

Division 2 - Matters of official record

153. Gazettes and other official documents
154. Documents published by authority of Parliaments etc
155. Evidence of official records
155A. Evidence of Commonwealth documents
156. Public documents
157. Public documents relating to court processes
158. Evidence of certain public documents
159. Official statistics

Division 3 - Matters relating to post and communications

160. Postal articles
161. Electronic communications
162. Lettergrams and telegrams
163. Proof of letters having been sent by Commonwealth agencies

PART 4.4 - CORROBORATION

164. Corroboration requirements abolished

PART 4.5 - WARNINGS AND INFORMATION

165. Unreliable evidence
165A. Warnings in relation to children's evidence
165B. Delay in prosecution

PART 4.6 - ANCILLARY PROVISIONS

Division 1 - Requests to produce documents or call witnesses
Note

166. Definition of request
167. Requests may be made about certain matters
168. Time limits for making certain requests
169. Failure or refusal to comply with requests

Division 2 - Proof of certain matters by affidavits or written statements
Note

170. Evidence relating to certain matters
171. Persons who may give such evidence
172. Evidence based on knowledge, belief or information
173. Notification of other parties

Division 3 - Foreign law

174. Evidence of foreign law
175. Evidence of law reports of foreign countries
176. Questions of foreign law to be decided by judge

Division 4 - Procedures for proving other matters

177. Certificates of expert evidence
178. Convictions, acquittals and other judicial proceedings
179. Proof of identity of convicted persons--affidavits by members of State or Territory police forces
180. Proof of identity of convicted persons--affidavits by members of Australian Federal Police
181. Proof of service of statutory notifications, notices, orders and directions

CHAPTER 5 - MISCELLANEOUS

182. Application of certain sections in relation to Commonwealth records
183. Inferences
184. Accused may admit matters and give consents
185. Full faith and credit to be given to documents properly authenticated
186. Swearing of affidavits before justices of the peace, notaries public and lawyers
187. No privilege against self-incrimination for bodies corporate
188. Impounding documents
189. The voir dire
190. Waiver of rules of evidence
191. Agreements as to facts
192. Leave, permission or direction may be given on terms
192A. Advance rulings and findings
193. Additional powers
194. Witnesses failing to attend proceedings
195. Prohibited question not to be published
196. Proceedings for offences
197. Regulations
198. Savings, transitional and other provisions
SCHEDULE 1
SCHEDULE 2
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