Evidence Bill 2008

Chapter 1 - PRELIMINARY Introductory Note

• 1 Purpose
• 2 Commencement
• 3 Definitions
• 3A Notes
• 4 Courts and proceedings to which Act applies
• 5 Extended application of certain provisions
• 6 Territories
• 7 Act binds Crown
• 8 Operation of Acts
• 9 Application of common law and equity
• 10 Parliamentary privilege preserved
• 11 General powers of a court

Chapter 2 - ADDUCING EVIDENCE

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 of witnesses 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 witness
• 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
• 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
• 52 Adducing of other evidence not affected
• 53 Views
• 54 Views to be evidence

Chapter 3 - ADMISSIBILITY OF EVIDENCE Introductory Note

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

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 dependant 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
• 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
• 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
• 90 Discretion to exclude admissions
• 91 Exclusion of evidence of judgments and convictions
• 92 Exceptions
• 93 Savings
• 94 Application
• 95 Use of evidence for other purposes
• 96 Failure to act
• 97 The tendency rule
• 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

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 Exception—application of certain provisions to makers of representations
• 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
• 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
• 113 Application of Part
• 114 Exclusion of visual identification evidence
• 115 Exclusion of evidence of identification by pictures
• 116 Directions to jury

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

Division 1B - Sexual assault communications privilege

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 Division 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
• 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 Introductory Note

• 140 Civil proceedings—standard of proof
• 141 Criminal proceedings—standard of proof
• 142 Admissibility of evidence—standard of proof
• 143 Matters of law
• 144 Matters of common knowledge
• 145 Certain Crown certificates

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
• 164 Corroboration requirements abolished
• 165 Unreliable evidence
• 165A Warnings in relation to children's evidence
• 165B Delay in prosecution

Division 1 - Requests to produce documents or call witnesses

• 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

• 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
• 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

Schedule 1 - OATHS AND AFFIRMATIONS

Oaths by interpreters

Affirmations by witnesses

Affirmations by interpreters

Part 1 - DEFINITIONS ACT court

Part 2 - OTHER EXPRESSIONS

• 1 References to businesses
• 2 References to examination in chief, cross- examination and re-examination
• 3 References to civil penalties
• 4 Unavailability of persons
• 5 Unavailability of documents and things
• 6 Representations in documents
• 7 Witnesses
• 8 References to documents
• 8A References to offices etc.
• 9 References to laws
• 10 References to children and parents
• 11 References to de facto partners