Evidence Bill 2008

CHAPTER 1—PRELIMINARY

• An introductory note contained in the Bill gives an outline of the Bill. The Bill sets…

PART 1.1—FORMAL MATTERS

• Clause 1 sets out the purpose of the Bill which is to make fresh provision for the law of evidence…
• Clause 2 provides for the commencement of the Bill. Clauses 1–3 and the Dictionary are to commence…
• Clause 3 provides that the expressions used in the Dictionary at the end of the Bill have the…
• Clause 3A provides that the Notes in the Bill do not form part of the Bill.

PART 1.2—APPLICATION OF THIS ACT

• Clause 4 provides for the Bill to apply to all proceedings in a Victorian court. These include a…
• Clause 7 provides that the Bill binds the Crown.
• Clause 8 makes it clear that the Bill does not affect the operation of provisions of other Acts.…
• Clause 9 principles and rules of common law or equity relating to evidence in proceedings to which…
• Clause 10 preserves the operation of laws relating to the privileges of any Australian Parliament.
• Clause 11 preserves the general power of courts to control proceedings before them, except so far…

CHAPTER 2—ADDUCING EVIDENCE

• A Note explains that the Chapter is about ways in which evidence is adduced. Part 2.1 is…

PART 2.1—WITNESSES Division 1—Competence and compellability of witnesses

• Clause 12 states that, except as provided otherwise by the Bill, everyone is a competent and…
• Clause 13 sets out the test for determining a witness's competence to give sworn and unsworn…
• Clause 14 provides that a person is not compellable to give evidence on a particular matter if the…
• Clause 15 provides that the Sovereign and others are not compellable to give evidence. The other…
• Clause 16 provides that judges or jurors are not competent to give evidence in the proceeding in…
• Clause 17 provides for rules of competence and compellability for defendants in criminal…
• Clause 18 provides that in a criminal proceeding generally, a person who is the spouse, de facto…
• Clause 19 contains no substantive provisions. Its inclusion ensures parity in section numbering…
• Clause 20 applies only to criminal proceedings for indictable offences. It permits certain comment…
• Clause 21 requires a person to take an oath or make an affirmation before giving sworn evidence.…
• Clause 22 requires interpreters either to take an oath or make an affirmation. Oaths or…
• Clause 23 provides that witnesses and interpreters may choose whether to take an oath or make an…
• Clause 24 provides that it is not necessary to use a religious text to take an oath. An oath is…
• Clause 24A provides for an alternate oath to be taken, even if the person's religious or spiritual…
• Clause 25 contains no substantive provisions. Its inclusion ensures parity in section numbering…
• Clause 26 provides that the court can make any order it considers just to control questioning of a…
• Clause 27 states the general principle that every party is entitled to question any witness who…
• Clause 28 sets out the order in which parties are to conduct examination in chief, cross…
• Clause 29 states the general rule that, subject to the Bill and the control of the court, it is up…
• Clause 30 provides that a witness can use an interpreter unless he or she can speak and understand…
• Clause 31 provides that witnesses who cannot speak or hear adequately can be questioned, and give…
• Clause 32 provides for the use a witness may make of a document to revive memory about a fact or…
• Clause 33 provides that in a criminal proceeding a police officer may give evidence in chief for…
• Clause 34 enables a court, at the request of a party, to direct the production of specified…
• Clause 35 provides that a party who calls for another party's document is not automatically…
• Clause 36 enables a court to order a person who is present at proceedings to give evidence or…
• Clause 37 provides that a leading question (a defined term) cannot be put to a witness in…
• Clause 38 allows a party, with the leave of the court, to cross-examine its own witness about—
• Clause 39 sets out the law relating to re-examination by limiting the questions that may be put to…
• Clause 40 prohibits a party from cross-examining a witness who another party has called in error…
• Clause 41 enables the court to disallow improper questions put to any witness during…
• Clause 42 permits a party to put a leading question (a defined term) to a witness in…
• Clause 43 sets out the manner in which prior inconsistent statements of a witness may be put to the…
• Clause 44 sets out the only manner in which a witness may be cross- examined about a prior…
• Clause 45 provides for the production and examination of a document during cross-examination about…
• Clause 46 enables the court to give leave to a party to recall a witness to be questioned about a…

PART 2.2—DOCUMENTS

• Clause 47 defines document in question for the purposes of Part 2.2 of the Bill. It also provides…
• Clause 48 provides that evidence of the contents of a document can be adduced by tendering the…
• Clause 49 provides for proof of documents in foreign countries.
• Clause 50 enables a party to apply to a court for a direction that he or she may adduce evidence of…
• Clause 51 abolishes the original document rule which provides that the contents of a document,…

PART 2.3—OTHER EVIDENCE

• Clause 52 provides that the Bill (except Part 2.3) will not affect an Australian law or rule of…
• Clause 53 enables a judge, on application, to order that a demonstration, experiment or inspection…
• Clause 54 makes it clear that the court (including the jury if there is one) may draw any…

CHAPTER 3—ADMISSIBILITY OF EVIDENCE

• An introductory note explains that the Chapter is about whether evidence adduced in a…

PART 3.1—RELEVANCE

• Clause 55 sets out what is relevant evidence. Under the clause, evidence is relevant if it could…
• Clause 56 concerns the admissibility of evidence. Relevant evidence is admissible except as…
• Clause 57 enables a court to admit evidence provisionally even if its relevance is not immediately…
• Clause 58 enables a court to examine a document or thing for the purpose of determining its…

PART 3.2—HEARSAY Division 1—The hearsay rule

• This Part sets out the exclusionary rule for hearsay evidence and exceptions to that rule.
• Clause 59 sets out the general exclusionary rule for hearsay evidence ("the hearsay rule"). Under…
• Clause 60 contains an exception to the hearsay rule where the evidence (which is otherwise hearsay)…
• Clause 61 makes it clear that nothing in Part 3.2 enables the use of a previous representation to…
• Clause 62 provides that in Division 2, previous representation (a defined term) refers only to a…
• Clause 63 provides an exception to the hearsay rule in civil proceedings where the maker of a…
• Clause 64 provides for two exceptions to the hearsay rule in civil proceedings where the maker of…
• Clause 65 provides for exceptions to the hearsay rule in criminal proceedings where the maker of…
• Clause 66 provides for exceptions to the hearsay rule in criminal proceedings where the maker of…
• Clause 66A contains an exception to the hearsay rule for contemporaneous statements about a person's…
• Clause 67 sets out the notice requirements for a party seeking to adduce hearsay evidence in…
• Clause 68 enables a party in civil proceedings to object to the tender of hearsay evidence where…
• Clause 69 provides an exception to the hearsay rule for certain previous representations in…
• Clause 70 provides that in certain circumstances, the hearsay rule does not apply to tags or labels…
• Clause 71 provides an exception to the hearsay rule for the use of representations as to the…
• Clause 72 provides an exception to the hearsay rule for evidence of a representation about the…
• Clause 73 provides an exception to the hearsay rule for reputation in relation to evidence about…
• Clause 74 provides a similar exception (to clause 73) to the hearsay rule for reputation as to…
• Clause 75 provides an exception to the hearsay rule for evidence adduced in interlocutory…

PART 3.3—OPINION

• Clause 76 states the general exclusionary rule that opinion evidence is not admissible to prove a…
• Clause 77 provides that the opinion rule does not apply to evidence that is admitted because it is…
• Clause 78 provides an exception to the opinion rule for lay opinions. It permits opinion evidence…
• Clause 78A provides an exception to the opinion rule for evidence of an opinion expressed by a…
• Clause 79 provides exceptions to the opinion rule for evidence that is wholly or substantially…
• Clause 80 abolishes the common law rules known as the "ultimate issue rule" and the "common…

PART 3.4—ADMISSIONS

• This Part sets out exceptions to the hearsay and opinion rules relating to admissions. An…
• Clause 81 provides an exception to the hearsay and opinion rules for evidence of an admission. A…
• Clause 82 qualifies the exception created by clause 81. The hearsay rule will apply to evidence of…
• Clause 83 restricts the use that can be made of admissions as against third parties. Under this…
• Clause 84 provides that if the party against whom evidence of an admission is being led raises an…
• Clause 85 relates to admissions by defendants in a criminal proceeding. Subclause (1) sets out that…
• Clause 85 is designed to be broad enough to cover the period where the investigating official is…
• Clause 86 makes inadmissible in a criminal proceeding any document (other than a sound or video…
• Clause 87 sets out the circumstances in which a representation made by another person is treated as…
• Clause 88 provides that to determine whether evidence of an admission is admissible, a person will…
• Clause 89 prohibits unfavourable inferences (including an inference of consciousness of guilt or an…
• Clause 90 provides that, if in a criminal proceeding, having regard to the circumstances in which…

PART 3.5—EVIDENCE OF JUDGMENTS AND CONVICTIONS

• This Part abolishes the rule known as the rule in Hollington v Hewthorn [1943] KB 587. In…
• Clause 91 provides that evidence of a decision or a finding of fact in a proceeding is not…
• Clause 92 provides two exceptions to the basic rule set out in clause 91. The first exception…
• Clause 93 preserves existing law that enables evidence of convictions to be admitted in defamation…

PART 3.6—TENDENCY AND COINCIDENCE

• This Part provides for the admissibility of evidence relating to conduct, reputation,…
• Clause 94 provides that Part 3.6 does not apply to evidence that relates only to the credibility of…
• Clause 95 provides that if evidence is deemed inadmissible for a prohibited purpose (as "tendency"…
• Clause 96 provides that a reference in Part 3.6 to the doing of an act includes a reference to a…
• Clause 97 sets out the exclusionary rule for tendency evidence. The rule ("the tendency rule")…
• Clause 98 sets out the exclusionary rule for coincidence evidence. The rule ("the coincidence…
• Clause 99 requires any notice to be given in accordance with the regulations or rules of court.
• Clause 100 sets out the circumstances in which the court may dispense with notice requirements. It…
• Clause 101 provides a further consideration in relation to the admissibility of both tendency and…

PART 3.7—CREDIBILITY Division 1—Credibility evidence

• Clause 101A inserts a definition of the evidence to which the "credibility rule" in clause 102…
• Clause 102 states the credibility rule itself—credibility evidence about a witness is not…
• Clause 103 provides an exception to the credibility rule. The rule does not apply to evidence to be…
• Clause 104 provides an additional safeguard in relation to credibility evidence adduced in criminal…
• Clause 105 contains no substantive provisions. Its inclusion ensures parity in section numbering…
• Clause 106 provides that in specific circumstances the credibility rule does not apply to rebutting…
• Clause 107 contains no substantive provisions. Its inclusion ensures parity in section numbering…
• Clause 108 provides exceptions to the credibility rule. First, for evidence adduced in…
• Clause 108A deals with the admissibility of credibility evidence of a person who has made a previous…
• Clause 108A only applies where the person who made the representation will not be called to give…
• Clause 108B provides further protections in relation to previous representations of an accused who is…
• Clause 108B provides that if evidence of a prior representation made by the defendant in a criminal…
• Clause 108C creates a new exception to the credibility rule. This exception applies to expert opinion…

PART 3.8—CHARACTER

• This Part sets out rules relating to evidence of the character of a defendant in a…
• Clause 109 restricts the application of Part 3.8 to criminal proceedings.
• Clause 110 provides exceptions to the hearsay rule, the opinion rule, the tendency rule and the…
• Clause 111 provides an exception to the hearsay rule and tendency rule for expert opinion evidence…
• Clause 112 requires leave to be obtained to cross-examine a defendant about matters set out in Part…

PART 3.9—IDENTIFICATION EVIDENCE

• This Part sets out exclusionary rules for visual identification evidence in a criminal…
• Clause 113 restricts the application of Part 3.9 to criminal proceedings.
• Clause 114 provides a general exclusionary rule for visual identification evidence. Visual…
• Clause 115 sets out the rules governing the admissibility of visual identification evidence where…
• Clause 116 requires the judge to inform the jury of the special need for caution before accepting…

PART 3.10—PRIVILEGES Division 1—Client Legal Privilege

• This Part sets out evidence that is protected from disclosure on grounds of privilege or…
• Clause 117 defines, for the purposes of the Division, the terms client, confidential communication,…
• Clause 118 is concerned with client legal privilege arising out of the provision of legal advice. It…
• Clause 118(c) extends the privilege to confidential documents prepared by someone other than the client…
• Clause 119 is concerned with client legal privilege arising out of the provision of professional…
• Clause 120 is concerned with client legal privilege of unrepresented parties. It provides protection…
• Clause 121 makes provision for the loss of client legal privilege generally. The privilege will be…
• Clause 122 deals with the loss of client legal privilege: consent and related matters.
• Clause 122 is designed to align the Bill more closely with the common law test for loss of privilege…
• Clause 122 is concerned with the behaviour of the holder of the privilege, as opposed to the…
• Clause 123 ensures that a defendant in a criminal proceeding can adduce evidence of confidential…
• Clause 124 provides that in a civil proceeding involving joint clients of a lawyer, one of the joint…
• Clause 125 provides that client legal privilege is lost for confidential communications made and…
• Clause 126 provides that where client legal privilege does not prevent evidence being adduced of a…
• Clause 127 entitles members of the clergy to refuse to divulge both the contents of religious…
• Clause 128 sets out the process which the court is to undertake when a witness objects to giving…
• Clause 128A provides a process to deal with objections on the grounds of self-incrimination when…
• Clause 129 prohibits (subject to some exceptions) evidence of the reasons for a decision, or of the…
• Clause 130 requires a court to prevent evidence of matters of state (for example, matters affecting…
• Clause 131 provides that evidence is not to be adduced of communications made between, or documents…
• Clause 131A expands the scope of privileges in the Bill so that they apply to any process or order of…
• Clause 132 provides that a court must satisfy itself that a witness or party is aware of his or her…
• Clause 133 makes it clear that a court can call for and examine any document in respect of which a…
• Clause 134 provides that if, under this Part, evidence must not be adduced or given in a proceeding,…

PART 3.11—DISCRETIONARY AND MANDATORY EXCLUSIONS

• Clause 135 provides a general discretion to exclude evidence if its probative value is substantially…
• Clause 136 enables the court to limit the use to be made of evidence where there is a danger that a…
• Clause 137 provides that the court must exclude prosecution evidence in criminal proceedings if its…
• Clause 138 enables the court to exclude evidence obtained improperly, unlawfully or in consequence…
• Clause 139 sets out the circumstances in which evidence of a statement made or act done by a person…

CHAPTER 4—PROOF

PART 4.1—STANDARD OF PROOF

• Clause 140 provides that the standard of proof in civil proceedings is proof on the balance of…
• Clause 141 provides that the standard of proof in criminal proceedings, in the case of the…
• Clause 142 provides that the standard of proof for a finding of fact necessary for deciding a…

PART 4.2—JUDICIAL NOTICE

• Clause 143 makes it unnecessary to adduce evidence about matters of law, including the provisions…
• Clause 144 makes it unnecessary to adduce evidence about knowledge that is not reasonably open to…
• Clause 145 preserves the rules of the common law and equity relating to the effect of a conclusive…

PART 4.3—FACILITATION OF PROOF Division 1—General

• Clause 146 makes provision in relation to evidence produced wholly or partly by machines. It may be…
• Clause 147 creates a similar presumption (to clause 146) for documents produced by machines in the…
• Clause 148 provides that it is presumed (unless the contrary is proved) that documents were…
• Clause 149 dispenses with the need to call a witness who attested to the execution of a document…
• Clause 150 presumes (unless the contrary is proved) that seals (including Royal seals, government…
• Clause 151 contains no substantive provision. Its inclusion ensures parity in section numbering with…
• Clause 152 presumes (unless the contrary is proved) that a document that is more than 20 years old…
• Clause 153 presumes (unless the contrary is proved) that documents, such as the Government Gazette…
• Clause 154 presumes (unless the contrary is proved) that documents purporting to have been printed…
• Clause 155 provides for evidence of a document that is a Commonwealth record or a State or Territory…
• Clause 155A contains no substantive provision. Its inclusion ensures parity in section numbering with…
• Clause 156 presumes (unless the contrary is proved) that a copy of, or an extract from or summary…
• Clause 157 makes a similar presumption in relation to evidence of public documents relating to court…
• Clause 158 provides for the admission in Victorian courts of a public document that is a public…
• Clause 159 provides that a document containing statistics purporting to be produced by the…
• Clause 160 provides that, unless evidence sufficient to raise doubt is adduced, a postal article…
• Clause 161 provides that, unless evidence sufficient to raise a doubt is adduced, a range of…
• Clause 162 provides that, unless evidence sufficient to raise doubt is adduced, it is presumed that…
• Clause 163 contains no substantive provision. Its inclusion ensures parity in section numbering with…

PART 4.4—CORROBORATION

• Clause 164 provides that evidence need not be corroborated. It also abolishes, subject to the other…

PART 4.5—WARNINGS AND INFORMATION

• Clause 165 allows any party in a jury trial to ask the judge to give a warning to the jury about the…
• Clause 165A deals with warnings in relation to children's evidence. The clause is based on the 2005…
• Clause 165B regulates warnings to juries in criminal proceedings where a delay as been found by the…
• Clause 165B is intended to replace the common law position on such warnings enunciated in Longman v…

PART 4.6—ANCILLARY PROVISIONS Division 1—Requests to produce documents or call witnesses

• Division 1 provides for a party to make certain requests to another party for the purpose…
• Clause 166 defines request and includes a request made by a party to another party for the…
• Clause 167 provides that a party may make a reasonable request to another party for the purpose of…
• Clause 168 provides that a party has 21 days to make a request, after receiving notice of another…
• Clause 169 provides that if a party, without reasonable cause, fails or refuses to comply with a…
• Clause 170 permits evidence relevant to the admissibility of evidence to which specified provisions…
• Clause 171 provides for such evidence (as specified in clause 170) to be given by a person with…
• Clause 172 enables evidence of a fact in relation to a document or thing to be given based on…
• Clause 173 provides that a copy of any affidavit or statement must be served on each other party a…
• Clause 174 provides for the proof of the statutory law, treaties or acts of state of foreign…
• Clause 175 provides for the proof of the case law of foreign countries.
• Clause 176 provides for questions as to the effect of foreign law to be decided by the judge.…
• Clause 177 provides for evidence of an expert's opinion to be given by certificate. The party…
• Clause 178 provides for evidence of a conviction, acquittal, sentencing or other order by, or other…
• Clause 179 provides for proof of the identity of a person alleged to have been convicted of an…
• Clause 180 provides for proof of the identity of a person alleged to have been convicted of an…
• Clause 181 provides that proof of the service, giving or sending under an Australian law, of written…

CHAPTER 5—MISCELLANEOUS

• Clause 182 contains no substantive provision. Its inclusion ensures parity in section numbering with…
• Clause 183 allows a court to examine a document or thing in respect of which a question has arisen…
• Clause 184 enables a defendant in or before a criminal proceeding, to make any admissions and give…
• Clause 185 contains no substantive provision. Its inclusion ensures parity in section numbering with…
• Clause 186 contains no substantive provision, however a Note to the clause refers to provisions in…
• Clause 187 provides that, for the purposes of a law of the State, a body corporate does not have a…
• Clause 188 empowers a court to impound documents tendered or produced before the court.
• Clause 189 sets out the circumstances in which a voir dire (the determination of a preliminary…
• Clause 190 allows the court, with the consent of the parties, to waive the rules relating to the…
• Clause 191 applies where the parties to a proceeding have agreed that, for the purposes of the…
• Clause 192 complements clauses of the Bill enabling a court to give any leave, permission or…
• Clause 192A deals with advance rulings and findings and implements recommendation 16-2 of the 2005…
• Clause 193 provides that a court may make orders to ensure that a party can adequately inspect…
• Clause 194 substantially replaces section 150 of the Evidence Act 1958, section 415 of the Crimes…
• Clause 195 makes it an offence to print or publish (without express court permission) an improper…
• Clause 196 contains no substantive provision. Its inclusion ensures parity in section numbering with…
• Clause 197 enables the Governor in Council to make regulations for the purposes of the Bill.…

PART 1—DEFINITIONS ACT Court admission asserted fact associated defendant Australia Australian court Australian law Australian lawyer—

• The definition is consistent with the National Legal Profession legislation, which in…

PART 2—OTHER EXPRESSIONS

• 1 References to businesses Business is defined broadly and extends to statutory…