Lawlink NSW: Appendix B - Evidence Bill 1988

Where am I now? Lawlink > Law Reform Commission > Publications > Appendix B - Evidence Bill 1988

Report 56 (1988) - Evidence

Appendix B - Evidence Bill 1988

How to purchase a copy of this report.

History of this Reference (Digest)

TABLE OF PROVISIONS

PART 1 - PRELIMINARY

1. Short title

2. Commencement

3. Definitions

4. References to business

5. References to examination in chief etc.

6. References to civil penalties

7. Unavailability of persons

8. Unavailability of documents

9. Representations in documents

10. Witnesses

PART 2 - APPLICATION OF ACT

11. Courts and proceedings to which Act applies

12. ****

13. Act binds Crown

14. Operation of other Acts

15. ****

16. Parliamentary privilege preserved

17. General powers of the court

PART 3-WITNESSES

Division 1 - Competence and compellability of witnesses

18. Competence and compellability

19. Competence: lack of capacity

20. Compellability: Sovereign etc.

21. Competence and compellability: Judges and jurors

22. Competence and compellability: defendant etc. in criminal proceedings

23. Comment on failure to give evidence

24. Compellability of spouses etc. in criminal proceedings

25. Compellability of spouses in civil proceedings

Division 2 - Sworn and unsworn evidence

26. Evidence of witnesses to be on oath or affirmation

27. Unsworn evidence in criminal proceedings

28. Comment on failure to give unsworn evidence

29. Court to advise jury and witnesses

Division 3 - Manner of giving evidence

Subdivision A - General rules

30. Court to control questioning of witnesses

31. Parties may question witnesses

32. Examination in chief to be completed before other questioning

33. Manner and form of questioning witnesses

34. Interpreters

35. Deaf and mute witnesses

36. Attempts to revive memory in court

37. Attempts to revive memory out of court

38. Direction not to extend to certain documents

39. Effect of calling for production of documents

Subdivision B - Examination in chief and re-examination

40. Leading questions

41. Unfavourable etc. witnesses

42. Limits on re-examination

Subdivision C - Cross-examination

43. Witness called in error

44. Improper questions

45. Leading questions

46. Prior inconsistent statements of witness

47. Previous representations of other persons

48. Production of documents

49. Certain matters to be put to witness

PART 4 - ADMISSION OF EVIDENCE: RELEVANCE RULE

50. Relevant evidence

51. Relevant evidence to be admissible

52. Provisional relevance

53. Inferences as to relevance

PART 5 - ADMISSION AND USE OF EVIDENCE: EXCLUSIONARY RULES

Division 1 - Hearsay evidence

Subdivision A - The hearsay rule

54. Exclusion of hearsay evidence

Subdivision B - "First-hand" hearsay

55. Restriction to "first-hand" hearsay

56. Exception: civil proceedings where maker not available

57. Exception: civil proceedings where maker available

58. Exception: criminal proceedings where maker not available

59. Exception: criminal proceedings where maker available

60. Notice to be given

Subdivision C - Other hearsay

61. Exception: business records

62. Exception: contents of tags, labels etc.

63. Exception: telecommunications

64. Exception: reputation as to certain matters

65. Exception: interlocutory proceedings

Division 2 - Opinion evidence

66. Exclusion of opinion evidence

67. Exception: lay opinions

68. Exception: opinions based on specialised knowledge

69. Ultimate issue and common knowledge rules abolished

Division 3 - Admissions

70. Definition: sound recording

71. Hearsay and opinion rules: exception for admissions

72. Exclusion of admissions influenced by violence etc.

73. Criminal proceedings: reliability of admissions by defendants

74. Criminal proceedings: admissions by suspects

75. Exclusion of records Of oral questioning

76. Admissions made with authority

77. Proof of making of admission

78. Evidence of silence

79. Discretion to exclude admissions

Division 4 - Evidence of judgments and convictions

80. Exclusion of evidence of judgments and convictions

81. Exceptions

82. Savings

Division 5 - Evidence of conduct and character relevant to issues

Subdivision A - Preliminary

83. Definition

84. Application

85. Use of evidence for other purposes

Subdivision B - Tendency evidence

86. Exclusion of tendency evidence

Subdivision C - Conduct evidence

87. Exception: conduct (including of accused) to prove tendency

88. Exclusion of evidence of conduct (including of accused) to prove improbability of co-incidence

89. Further protections: prosecution evidence of conduct of accused

90. Notice to be given

Subdivision D - Character evidence

91. Exception: character of accused

92. Exception: character of co-accuseds

93. cross-examination of accused by leave only

Division 6 - Credibility

94. Exclusion of evidence relevant to credibility

95. Exception: character of accused

96. Exception: cross-examination as to credibility

97. Further protections: cross-examination of accused

98. Where unsworn evidence given

99. Exception: rebutting denials by other evidence

100. Exception: application of certain provisions to maker of representations

101. Exception: re-establishing credibility

Division 7 - Identification evidence

102. Application of Division

103. Exclusion of identification evidence

104. Exclusion of evidence of identification by pictures

105. Directions to jury

Division 8 - Privileges

Subdivision A - Client legal privilege

106. Privilege in respect of legal advice and litigation etc.

107. Loss of client legal privilege

108. Definitions

Subdivision B - other privileges

109. Privilege in respect of confidential communications and records

110. Privilege in respect of self-incrimination in other proceedings

Subdivision C - Evidence excluded in the public interest

111. Exclusion of evidence of reasons for judicial etc. decisions

112. Exclusion of evidence of matters of state

113. Exclusion of evidence of settlement negotiations

Subdivision D - General

114. Court to inform of rights etc.

115. Court may inspect etc. documents

116. Certain evidence inadmissible

Division 9 - Discretions to exclude evidence

117. General discretion to exclude

118. Criminal proceedings: discretion to exclude prejudicial evidence

119. Discretion to exclude improperly obtained evidence

PART 6 - OTHER ASPECTS OF PROOF

Division 1 - Judicial notice

120. Matters of law

121. Matters of common knowledge etc.

122. Certain Crown certificates

Division 2 - Documents

123. Definitions

124. "Best evidence" rule abolished

125. Proof of contents of documents

126. Documents in foreign countries

Division 3 - Facilitation of proof

127. Evidence produced by machines, processes etc.

128. Attestation of documents

129. Gazettes etc.

130. Seals and signatures

131. Public documents

132. Documents produced from proper custody

133. Labels etc.

134. Posts and telecommunications

135. official statistics

Division 4 - Standard of proof

136. civil proceedings: standard of proof

137. Criminal proceedings: standards of proof

138. Admissibility of evidence: standard of proof

Division 5 - Corroboration

139. Corroboration requirements abolished

Division 6 - Warnings

140. Unreliable evidence

PART 7 - MISCELLANEOUS

141. Inferences

142. Proof of certain matters by affidavit etc.

143. Request to produce documents or call witnesses

144. Views etc.

145. Views etc. to be evidence

146. The voir dire

147. Waiver of rules of evidence

148. Leave etc. may be given on terms

149. Additional powers on discovery and inspection

150. ****

151. Regulations

SCHEDULE

___________________________

NOTES

1. Clauses 12, 15 and 150 are not included so as to retain uniform numbering with the ALRC draft Bill. The clauses referred to matters applicable to the Commonwealth.

2. Clause 27 (11) of the ALRC draft Bill is omitted for the reason stated in the Report.

3. Apart from the above, variations from the ALRC draft Bill are indicated by underlining.

EVIDENCE BILL 1988

NEW SOUTH WALES

[STATE ARMS]

A BILL FOR

An Act relating to evidence in proceedings in State courts.

The Legislature of Nev South Wales enacts:

PART 1 - PRELIMINARY

Short title

1. This Act may be cited as the Evidence Act 1988.

Commencement

2. This Act shall commence on a day to be appointed by proclamation.

Definitions

3. (1) In this Act-

"admission" means a previous representation made by a person who is or becomes a party to a proceeding, being a representation that is adverse to the person's interest in the outcome of the proceedings;

"case", in relation to a party, means the facts in issue in respect of which the party bears the legal burden of proof;

"civil proceeding" means a proceeding in a court, other than a criminal proceeding;

"confidential communication" or "confidential record" means a communication made or a record prepared in such circumstances that, at the time when it was made or prepared-

(a) the person who made or, prepared it; or

(b) the person to whom it was made or for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law;

"credibility rule" means section 94 (1);

"criminal proceeding" means a prosecution in a court for an offence and includes a proceeding for the commitment of a person for trial for an offence;

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

"enactment" means an Act, a British Act applying as part of the law of the State or a regulation, rule, by-law or ordinance made under such an Act;

"evidence" includes unsworn evidence;

"federal court" means the High Court or any court created by the Parliament of the Commonwealth;

"hearsay rule" means section 54 (1);

"identification evidence",, in relation to a criminal proceeding, means evidence that is-

(a) an assertion by a person to the effect that a defendant was, or resembles a person who was, present at or near a place where-

(i) the offence for which the defendant is being prosecuted was committed; or

(ii) an act that is connected with that offence was done,

at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the first-mentioned person saw, heard or otherwise noticed at that time and place; or

(b) a report (whether oral or in writing) of an assertion as mentioned in paragraph (a);

"investigating official" means a police officer or a person whose functions include functions in respect of the prevention or investigation of offences;

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

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

(a) directly or indirectly suggests a particular answer to the question; or

(b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked;

"legal or administrative proceeding" means a proceeding (however described) -

(a) in a court, a federal court or a court of another State or a Territory or of a foreign country; or

(b) before a person or body (other than a court) authorised by law, including a Commonwealth law or a law of another State or a Territory or of a foreign country, or by consent of parties, to hear and receive evidence, and includes a proceeding in a coroner's court and a proceeding in a court martial;

"legal practitioner" means a barrister or a solicitor; "offence" includes an offence against or arising under a law of or in force in another State or Territory or under a law of the Commonwealth;

"official questioning" means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence;

"opinion rule" means section 66 (1);

"person who has been prosecuted for a related offence", in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted (being a prosecution that has not been completed or terminated) for-

(a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or

(b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted;

"police officer" means a member of the police force, a member of the Australian Federal Police or a member of the police force of another State or a Territory;

"previous representation" means a representation made otherwise than in the course of the giving of evidence in the proceeding in which evidence of the representation is sought to be adduced;

"prior consistent statement", in relation to a witness, means a previous representation that is consistent with evidence given by the witness;

"prior inconsistent statement", in relation to a witness, means a previous representation that is inconsistent with evidence given by the witness;

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

"public document" means a document that-

(a) forms part of the records of-

(i) the Crown in any of its capacities;

(ii) the government of a foreign country; or

(iii) a person or body holding office or exercising a function under or by virtue of an Act or law, whether of the State, the Commonwealth, another State or a Territory or of a foreign country; or

(b) is being kept by or on behalf of the Crown, such a government or such a person or body,

and includes the records of the proceedings of a House of Parliament, a House of the Parliament of the Commonwealth or another State, a Legislative Assembly of a Territory (including the Australian Capital Territory House of Assembly) or the legislature of a foreign country;

"representation" includes an express or implied representation (whether oral or in writing) and a representation to be inferred from conduct;

"sworn evidence" means evidence given by a person who, before he or she gave it, had sworn an oath or made an affirmation in accordance with this Act; telecommunications installation and

"telecommunications service" have the meanings that they respectively have under the Telecommunications Act 1975 of the Commonwealth;

"tendency rule" means section 86;

"unsworn evidence" means evidence that is not sworn evidence.

(2).In this Act-

(a) a reference to a function includes a reference to a power, authority or duty; and

(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

References to businesses

4.(1) A reference in this Act to a business includes a reference to-

(a) a profession, calling, occupation, trade or undertaking;

(b) an activity engaged in or carried on by-

(i) the Crown in any of its capacities; or

(ii) the government of a foreign country;

(c) an activity engaged in or carried on by a person or body holding office or exercising power under or by virtue of the Australian Constitution or of a law, whether of the State, the Commonwealth, another State or a Territory or of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power; and

(d) the proceedings of a House of Parliament, a House of the Parliament of the Commonwealth or another State, a Legislative Assembly of a Territory (including the Australian Capital Territory House of Assembly) or the legislature of a foreign country.

(2) A reference in this Act to a business also includes a reference to-

(a) a business that is not engaged in or carried on for profit; and

(b) a business engaged in or carried on outside Australia.

References to examination in chief etc.

5. (1) A reference in this Act to-

(a) examination in chief of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re-examination;

(b) cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence;

(c) re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning conducted after the cross-examination of the witness by some other party,

and "examine in chief". "cross-examine" and "re-examine" have corresponding meanings.

(2) Where a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to questioning of the witness by that party before the witness is questioned by some other party.

References to civil penalties

6. For the purposes of this Act, a person shall be taken to be liable to a civil penalty if, in a legal or administrative proceeding (not being a criminal proceeding), the person would be liable to a penalty arising under a law of or in force in the State, the commonwealth, another State, a Territory or a foreign country.

Unavailability of persons

7. (1) For the purposes of this Act, a person shall be taken not to be available to give evidence about a fact if-

(a) the person is dead;

(b) the person is not competent to give evidence about the fact;

(d) the evidence, under a provision of this Act, may not be given;

(e) all reasonable steps have been taken to find the person or to secure his or her attendance, but without success; or

(f) all reasonable steps have been taken to compel the person to give the evidence, but without success.

(2) In all other cases the person shall be taken to be available to give evidence about the fact.

Unavailability of documents

8. (1) For the purposes of this Act-

(a) a document that cannot be found after reasonable enquiry and search shall be taken not to be available to a party; and

(b) a document that has been destroyed shall be taken not to be available to a party if it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith or was destroyed by some other person.

(2) A document other than a document referred to in subsection (1) shall be taken not to be available to a party if-

(a) it cannot be obtained by any judicial procedure of the court;

(b) it is not in the possession or under the control of the party and is in the possession or under the control of some other party who knows or might reasonably be supposed to know that evidence of the contents of the document is likely to be relevant;

(c) it is not in the possession or under the control of the party and, at a time when it was in the possession or under the control of some other party, that party knew or might reasonably be supposed to have known that evidence of the contents of the document was likely to be relevant; or

(d) the contents of the document are not closely related to an issue that is important in the proceeding.

(3) In all other cases the document shall be taken to be available to the party.

Representations in documents 9. For the purposes of this Act, where a representation is contained in a document that-

(a) was written, made, dictated or otherwise produced by a person; or

(b) was recognised by a person as his or her representation by signing, initialling or otherwise marking the document,

the representation shall be taken to have been made by the person.

Witnesses

10. A reference in this Act-

(a) to a witness includes a reference to a party giving evidence; and

(b) to a witness who has been called by a party to give evidence includes a reference to the party giving evidence.

PART 2 - APPLICATION OF ACT

Courts and proceedings to which Act applies

11. (1) This Act applies to and in relation to all proceedings in a court, including such a proceeding that-

(a) relates to bail;

(b) is an interlocutory proceeding or a proceeding of a like kind; or

(2) This Act does not apply to or in relation to-

(a) a proceeding the hearing of which began before the commencement of this Act; or

(b) a criminal proceeding, so far as that proceeding concerns the determination of the penalty to be imposed in respect of an offence.

12. ****

Act binds Crown

13. This Act binds the Crown in right of New South Wales and, in so far as the legislative Power of Parliament permits, the Crown in all its other capacities.

Operation of other Acts

14. The provisions of an enactment other than this Act have effect notwithstanding this Act.

15. ****

Parliamentary privilege preserved

16. Parts 4 and 3 do not affect the law relating to the privileges of Parliament or a House of the Parliament.

General powers of the court

17. It is the intention of the Parliament that the power of a court to control the conduct of a proceeding is not, except as expressly or by necessary intendment provided by this Act, to be affected by this Act.

PART 3 - WITNESSES

Division 1 - Competence and compellability of witnesses

Competence and compellability

18. Except as otherwise provided by this Act-

(a) every person is competent to give evidence; and

(b) a person who is competent to give evidence about a fact is compellable to give that evidence.

Competence: lack of capacity

19.(1) A person who is incapable of understanding that, in giving evidence in a proceeding, he or she is under an obligation to give truthful evidence is not competent to give evidence.

(2) A person who is incapable of giving a rational reply to a question about a fact is not competent to give evidence about the fact.

(3) Where-

(a) a person is incapable of hearing or understanding, or of communicating a reply to, a question about a fact; and

(b) that incapacity cannot be overcome, or cannot be overcome without undue cost or undue delay,

the person is not competent to give evidence about the fact.

(4) Unless it appears otherwise, it shall be presumed that a person is not incompetent by reason of subsection (1), (2) or (3).

(5) Evidence that has been given by a witness does not become inadmissible by reason only that, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.

(6) For the purpose of determining a question arising under this section, the court may inform itself as the court thinks fit.

Compellability: Sovereign etc.

20. (1) The Sovereign, the Governor-General, the Governor, the Governor of another State, the Administrator of a Territory, a foreign sovereign or the Head of State of a foreign country is not compellable to give evidence.

(2) Where, if a member of a House of Parliament or a member of the legislature of the Commonwealth, another State or a Territory were to be compelled to give evidence, the member would thereby be prevented from attending-

(a) a sitting of the House or the legislature, or a joint sitting of Parliament or the legislature, of which he or she is a member; or

(b) a meeting of a committee of such a House or legislature, the member is not compellable so to give evidence.

Competence and compellability: Judges and jurors

21.(1) A person who is a Judge or Juror in a proceeding is not competent to give evidence in the proceeding.

(2) A person who is or was a Judge in a legal or administrative proceeding is not compellable to give evidence about the proceeding unless the court gives leave.

Competence and compellability: defendant etc. in criminal proceedings

22. (1) This section applies only in a criminal proceeding.

(2) A defendant is not competent to give evidence as a witness for the prosecution.

(3) A person who is being prosecuted for a related offence

(a) is not compellable to give evidence; and

(b) except with the leave of the court, may not give evidence as a witness for the prosecution.

(4) Where it appears to the court that a witness called by the prosecutor may be a person who is being prosecuted for a related offence, the court shall satisfy itself (if there is a jury, in the absence of the jury) that the witness is aware of the effect of subsection (3).

(5) Without limiting the matters that may be taken into account by the court, in determining whether to give leave it shall take into account-

(a) whether the person has or appears to have a motive to misrepresent a matter as to which the person is to give evidence; and

(b) whether the completion or termination of the prosecution of the person before the person gives evidence is reasonably practicable.

Comment on failure to give evidence

23. (1) In a criminal proceeding, where a defendant has not given evidence, the Judge or a party other than the prosecutor shall not comment on the failure of the defendant to give evidence.

(2) A Prosecutor may, with the leave of the court, comment on the fact that the defendant did not give evidence where that fact is mentioned in the presence of the Jury by the defendant or a person who is being prosecuted for a related offence.

Compellability of spouses etc. in criminal proceedings

24. (1) This section applies only in a criminal proceeding.

(2) A person who is the spouse, the de facto spouse, a parent or a child of a defendant may object to being required to give evidence as a witness for the prosecution.

(3) The objection shall be made before the witness gives evidence or as soon as practicable after the witness becomes aware of the right so to object, whichever is the later.

(4) A witness who is the spouse, the de facto spouse, a parent or a child of a defendant may object to being required to give evidence of a communication made between the witness and that defendant.

(5) Where it appears to the court that a witness may have a right to make an objection under subsection (2) or (4), the court shall satisfy itself that the witness is aware of the effect of that provision as it may apply to the witness.

(6) If there is a jury, the court shall hear and determine any objection under subsection (2) or (4) in the absence of the jury.

(7) Where, on an objection under subsection (2) or (4), the court finds that-

(a) the likelihood of the harm that would or might be caused, whether directly or indirectly, by the witness giving evidence or giving evidence of the communication, as the case may be, to-

(i) the person who made the objection; or

(ii) the relationship between that person and the defendant concerned; and

(b) the nature and extent of any such harm, outweigh the desirability of having the evidence given, the person shall not be required to give the evidence.

(8) Without limiting the matters that may be taken into account by the court, for the purposes of subsection (7) it shall take into account-

(a) the nature and gravity of the offence for which the defendant is being prosecuted;

(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it;

(c) whether any other evidence concerning the matters to which the evidence of the witness would relate is reasonably available to the prosecutor;

(d) the nature of the relationship between the defendant and the person; and

(e) whether, in giving the evidence, the witness would have to disclose matter that was received by the witness in confidence from the defendant.

(9) Where an objection under subsection (2) or (4) has been determined, the prosecutor may not comment on the objection, on the decision of the court in relation to the objection or on the failure of the person to give evidence.

(10) In this section-

(a) a reference to the de facto spouse of a person is a reference to a person of the opposite sex to the first-mentioned person who is living with the first-mentioned person as that person's husband or wife on a bona fide domestic basis although not married to that person;

(b) a reference to a parent, in relation to a person, includes a reference to an adoptive parent of that person and, in relation to a person who was an ex-nuptial child, also includes a reference to the natural father of that person; and

(c) a reference to a child is a reference to a child of any age and includes a reference to an adopted child and an ex-nuptial child.

Compellability of spouses in civil proceedings

25. In a civil proceeding (not being a proceeding concerning the custody, guardianship or wardship of a child or a proceeding for access to a child), a person who is married is not compellable to give evidence of a communication between the person and his or her spouse made during the marriage.

Division 2 - Sworn and unsworn evidence

Evidence of witnesses to be on oath or affirmation

26. (1) Except as otherwise provided by this Division, a person may not give evidence, or act as an interpreter, in a proceeding unless the person has sworn an oath or made an affirmation in accordance with the appropriate form in the Schedule or in accordance with a similar form.

(2) It is for the person who is to give evidence to choose whether to swear an oath or make an affirmation.

(3) It is not necessary that a religious text be used in swearing an oath.

(4) The court may direct a person who is to give evidence to make an affirmation if-

(a) the person refuses to choose whether to swear an oath or make an affirmation; or

(b) it is not reasonably practicable for the person to swear an appropriate oath.

(5) An oath is effective for the purposes of this section notwithstanding that the person who swore it-

(a) did not have a religious belief or did not have a religious belief of a particular kind; or

(b) did not understand the nature and consequences of the oath.

(6) A person who is called merely to produce a document or object to the court need not swear an oath or make an affirmation before doing so.

Unsworn evidence in criminal proceedings

27. (1) In a criminal proceeding, a defendant may give unsworn evidence.

(2) A defendant who gives unsworn evidence may not also give sworn evidence unless there are special circumstances and the court gives leave.

(3) In giving unsworn evidence, the defendant may, with the leave of the court, read from a statement in writing and may use notes.

(4) Where a legal practitioner appears for the defendant, the legal practitioner may assist the defendant to prepare the statement or notes.

(5) Where a defendant proposes to use a statement in writing or notes, the court may, before the defendant gives the evidence,' direct that the statement or notes be produced to the court or to some other party.

(6) Where the defendant is unable to read from a statement in writing, the legal practitioner may, with the leave of the court, read the statement to the court.

(7) After unsworn evidence has been given, the legal practitioner may, with the leave of the court, direct the defendant's attention to matters as to which the defendant has not given unsworn evidence or as to which the defendant might wish to give further unsworn evidence.

(8) A defendant who has given unsworn evidence shall not be cross-examined.

(9) Unsworn evidence given by a defendant may not be used for or against any other defendant.

(10) Subsections (8) and (9) do not apply if the defendant gives both sworn and unsworn evidence.

(11) [omitted]

Comment on unsworn evidence

28. (1) In a criminal proceeding, where a defendant has given unsworn evidence and has not also given sworn evidence, the Judge or a party other than the prosecutor may comment on the fact that the defendant did not give sworn evidence.

(2) A prosecutor may, with the leave of the court, comment on the fact that the defendant did not give sworn evidence where that fact is mentioned in the presence of the Jury by the defendant or a person who is being prosecuted for a related offence.

(3) A comment by a Judge or a party (including a prosecutor) shall not-

(a) except where a reason why unsworn evidence was given or sworn evidence was not given is mentioned in the presence of the Jury by the defendant or a person who is being prosecuted for a related offence, refer to any reason-why unsworn evidence was given or sworn evidence not given;

(b) suggest that the defendant did not give sworn evidence, or did not offer himself or herself for cross-examination, because the defendant believed that he or she was guilty of the offence concerned; or

(c) suggest that unsworn evidence is, by reason only that it is unsworn evidence or that it was not subject to cross-examination, necessarily less persuasive than sworn evidence.

Court to advise jury and witnesses

29. (1) Except as mentioned in subsection (3), before a witness gives evidence, the court shall inform the witness that witnesses have a choice of swearing an oath or making an affirmation before giving evidence.

(2) In a criminal proceeding, before any defendant in the proceeding gives evidence, the court shall inform the jury, if there is a jury, that-

(a) witnesses have a choice of swearing an oath or making an affirmation before giving evidence;

(b) defendants in criminal Proceedings have a choice of giving evidence or not giving evidence;

(c) defendants in criminal proceedings need not swear an oath or make an affirmation before giving evidence, but a defendant in such a proceeding who gives evidence without first having sworn an oath or made an affirmation-

(i) may not also give sworn evidence without the leave of the court;

(ii) is not subject to cross-examination; and

(iii) is not subject to any Penalty for giving false evidence; and

(d) defendants in criminal proceedings who give evidence after swearing on oath or making an affirmation are subject to cross-examination.

(3) In a criminal proceeding, before each defendant gives evidence, the court shall inform the defendant of the matters set out in subsection (2).

(4) In a criminal proceeding, where a defendant is not represented in the proceeding by a legal practitioner, the court shall, before the defendant gives evidence, inform the defendant (if there is a jury, in the absence of the jury) that sworn evidence may be more persuasive than unsworn evidence.

Division 3 - manner of giving evidence

Subdivision A - General rules

Court to control Questioning of witnesses

30. Subject to this Act, the court may, in its discretion, make such orders as are just in relation to-

(a) the manner in which witnesses are to be questioned;

(b) the production and use of documents and things in connection with the questioning of witnesses; and

Parties may question witnesses

31. Subject to this Act, a party may question any witness.

Examination in chief to be completed before other questioning

32. Unless the court otherwise directs-

(a) cross-examination of a witness shall not take place before the examination in chief of the witness; and

(b) re-examination of a witness shall not take place before all other parties who wish to do so have cross-examined the witness.

Manner and form of questioning witnesses

33. (1) Except as otherwise provided by this Division or as directed by the court, a party may question a witness in any way the party thinks fit.

(2) Evidence may be given in whole or in part in oral or written narrative form and the court may direct that it be so given.

Interpreters

34. A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand fully, and to make an adequate reply to, questions that may be put about the fact.

Deaf and mute witnesses

35. (l) A witness who cannot adequately hear may be questioned in any appropriate manner.

(2) A witness who cannot adequately speak may give evidence by any appropriate means.

Attempts to revive memory in court

36. (1) A witness may not, in the course of giving evidence, use a document to try to revive his or her memory about a fact without the leave of the court.

(2) Without limiting the matters that may be taken into account by the court, in determining whether to give leave it shall take into account-

(a) whether the witness will be able to recall the fact adequately without using the document; and

(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that-

(i) was written or made by the witness at a time when the events recorded in it were fresh in his or her memory; or

(ii) was, at such a time, found by the witness to be accurate.

(3) Where a witness has, while giving evidence, used a document to try to revive his or her memory about a fact, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact.

(4) Where leave has been given as mentioned in this section, the court shall, on the request of a party, give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.

Attempts to revive memory out of court

37. (1) The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.

(2) Where, without reasonable excuse, the directions have not been complied with, the court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory.

Direction not to extend to certain documents

38. (1) Where, by virtue of section 106 (Privilege in respect of legal advice and litigation etc.), evidence of the contents of a document may not be adduced, a direction under section 37 (1) shall not be made so as to require the production of the document.

(2) The objection required under section 106 is also required in connection with the operation of subsection (1).

Effect of calling for production of documents

39. (1) A party shall not be required to tender a document by reason only that the party, whether under this Act or otherwise, called for the document to be produced to the party or inspected it when it was so produced.

(2) Where a document so called for has been produced or inspected and the party to whom it was produced or who inspected it has failed to tender it, the party who produced it is not for that reason entitled to tender it.

Subdivision B - Examination in chief and re-examination

Leading questions

40. A leading question, other than a question that relates to a matter introductory to the evidence of the witness or to a matter that is not in dispute, shall not be put to a witness in examination i-n chief or in re-examination unless the court gives leave.

Unfavourable etc. witnesses

41. (1) Where a witness gives evidence that is unfavourable to the party who called the witness, that party may, with the leave of the court, question the witness about that evidence as though the party were cross-examining the witness.

(2) Where, in examination in chief, a witness appears to the court not to be making a genuine attempt to give evidence about a matter of which the witness may reasonably be supposed to have knowledge, the party who called the witness may, with the leave of the court, question the witness about that matter as though the party were cross-examining the witness.

(3) A party who is questioning a witness as mentioned in subsection (1) or (2) may also, with the leave of the court, question the witness about matters relevant only to the credibility of the witness, and such questioning shall be taken to be cross-examination for the purposes of this Act.

(4) Unless the court otherwise directs, questioning as mentioned in this section shall take place before the other parties cross-examine the witness.

(5) Where the court so directs, the order in which the parties question the witness shall be as the court directs.

(6) Without limiting the matters that may be taken into account by the court, in determining whether to give leave, or give a direction, under this section it shall take into account-

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by some other party.

Limits on re-examination

42. On re-examination, a witness may be questioned as to matters arising out of or related to evidence given by the witness in cross-examination and other questions may not be put to the witness without the leave of the court.

Subdivision C - Cross-examination

Witness called in error

43. A party may not cross-examine a witness who has been called in error by some other party and has not been questioned by that other party about a matter relevant to a question to be determined in the proceeding.

Improper questions

44. (1) If a misleading question, or a question that is unduly annoying, harassing, intimidating, offensive, oppressive or repetitive, is put to a witness in cross-examination, the court may disallow the question or inform the witness that it need not be answered.

(2) Without limiting the matters that may be taken into account by the court, for the purposes of subsection (1) it shall take into account any relevant condition or characteristic of the witness, including age, personality and education and any mental, intellectual or physical disability to which the witness is or appears to be subject.

Leading questions

45. (1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.

(2) Without limiting the matters that the court may take into account, in determining whether to disallow the question or give such a direction it shall take into account the extent to which-

(a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness;

(b) the witness has an interest consistent with an interest of the cross-examiner;

(c) the witness is sympathetic to the Party who is ,cross-examining the witness, either generally or in relation to a particular matter; and

(d) the facts will be better ascertained if leading questions are not used.

(3) Subsection (1) does not limit the power of the court to control leading questions.

Prior-inconsistent statements of witness 46.

(1) It is not necessary that complete particulars of a prior inconsistent statement alleged to have been made by a witness be given to the witness, or that a document that contains a record of the statement be shown to the witness, before the witness may be cross-examined about the statement.

(2) Where, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner may not adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner-

(a) gave the witness such particulars of the statement as are reasonably necessary to enable the witness to identify the statement; and

(b) drew the attention of the witness to so much of the statement as is inconsistent with the evidence of the witness.

(3) For the purpose of adducing that evidence, the party may re-open the party's case.

Previous representations of other persons

47. (1) Except as provided by this section, a cross-examiner may not, in cross-examination of a witness, use a previous representation alleged to have been made by a person other than the witness.

(2) Where evidence of such a representation has been admitted or the court is satisfied that it will be admitted, the cross-examiner may question the witness about it and its contents.

(3) Where-

(a) such a representation is recorded in a document; and

(b) evidence of the representation has not been admitted and the court is not satisfied that, if it were to be adduced, it would be admitted,

the document may only be used as follows:

(d) the witness may be asked whether, having examined the contents of the document, he or she adheres to the evidence that he or she has given;

(e) neither the cross-examiner nor the witness shall identify the document or disclose its contents.

(4) A document used as mentioned in subsection (3) may be marked for identification.

Production of documents

48. (1) Where a Party -

(a) is cross-examining or has cross-examined a witness about a prior inconsistent statement alleged to have been made by the witness; or

(b) in cross-examination of a witness, is using or has used a previous representation alleged to have been made by some other person,

being a statement or representation that is recorded in a document, the party shall, if the court so orders or if some other party so requires, produce the document, or such evidence of the contents of the document as is available to the party, to the court or to that other party.

(2) Where a document or evidence has been so produced, the court may-

(a) examine it;

(b) give directions as to its use; and

(3) A party shall not, by reason only of having produced a document to a witness who is being cross-examined, be required to tender the document.

Certain matters to be put to witness

49. Where a party adduces evidence-

(a) that contradicts evidence already given in examination in chief by a witness called by some other party; or

(b) about a matter as to which a witness who has already been called by some other Party was able to give evidence in examination in chief,

and the evidence adduced has been admitted, the court may, if the first-mentioned party did not cross-examine the witness about the matter to which the evidence relates, give leave to the party who called the witness to re-call the witness to be questioned about the matter.

PART 4 - ADMISSION OF EVIDENCE: RELEVANCE RULE

Relevant evidence

50. (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, whether directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence shall not be taken to be irrelevant by reason only that it relates to-

(a) the credibility of a party or a witness;

(b) the admissibility of other evidence; or

Relevant evidence to be admissible

51. Evidence that is relevant in a proceeding is, except as otherwise provided by this Act, admissible, and shall be admitted, in the proceeding and evidence that is not relevant in the proceeding is not so admissible.

Provisional relevance

52. (1) Where the determination of the question whether evidence adduced by a party is relevant depends on the court's making some other finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant-

(a) if it is reasonably open to make that finding; or

(b) subject to further evidence being admitted such that, at some later stage of the proceeding, it will be reasonably open to make that finding.

(2) Without limiting subsection (1), where the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had a common purpose to effect an unlawful conspiracy, the court may use the evidence itself in determining whether such a common purpose existed.

Inferences as to relevance

53. (1) Where a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.

(2) Subsection (1) does not limit the matters from which inferences may properly be drawn.

PART 5 - ADMISSION AND USE OF EVIDENCE: EXCLUSIONARY RULES

Division 1 - Hearsay evidence

Subdivision A - The hearsay rule

Exclusion of hearsay evidence

54. (1) Evidence of a previous representation is not admissible to prove the existence of a fact intended by the person who made the representation to be asserted by the representation.

(2) Such a fact is in this Division referred to as an asserted fact.

(3) Where evidence of a previous representation is relevant otherwise than as mentioned in subsection (1), that subsection does not prevent the use of the evidence to prove the existence of an asserted fact.

Subdivision B - "First-hand" hearsay

Restriction to "first-hand" hearsay

55. (1) A reference in this Subdivision to a previous representation is a reference to a previous representation that was made by a person whose knowledge of an asserted fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived, other than a previous representation made by some other person about the asserted fact.

(2) Such knowledge is in this Division referred to as personal knowledge.

Exception: civil proceedings where maker not available

56. In a civil proceeding, where the person who made a previous representation is not available to give evidence about an asserted fact, the hearsay rule does not apply in relation to-

(a) oral evidence of the representation that is given by a person who saw, heard or otherwise perceived the making of the representation; or

(b) a document so far as it contains the representation or some other representation to which it is reasonably, necessary to refer to understand the representation.

Exception: civil proceedings where maker available

57. (1) This section applies in a civil proceeding where a person who made a previous representation is available to give evidence about an asserted fact.

(2) Where it would cause undue expense or undue delay, or would not be reasonably practicable, to call that person to give evidence, the hearsay rule does not apply in relation to-

(a) oral evidence of the representation that is given by a person who saw, heard or otherwise perceived the making of the representation; or

(b) a document so far as it contains the representation or some other representation to which it is reasonably necessary to refer to understand the representation.

(3) Where the person who made a previous representation has been or is to be called to give evidence, the hearsay rule does not apply in relation to evidence of the representation that is given by-

(a) that person; or

(b) a person who saw, heard or otherwise perceived the making of the representation,

if, at the time when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(4) Where subsection (3) applies in relation to a representation, a document containing the representation shall not, unless the court gives leave, be tendered before the conclusion of the examination in chief of the person who made the representation.

Exception: criminal proceedings where maker not available

58. (1) This section applies in a criminal proceeding where a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply in relation to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the making of the representation, being a representation that was-

(a) made under a duty to make that representation or to make representations of that kind;

(b) made at or shortly after the time when the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication;

(c) made in the course of giving sworn evidence in a legal or administrative proceeding if the defendant, in that proceeding, cross-examined the person who made the representation, or had a reasonable opportunity to cross-examine that person, about it; or

(d) against the interests of the person who made it at the time when it was made.

(3) For the purposes of subsection (2) (c), a defendant who was not present at a time when the cross-examination of a person might have been conducted but could reasonably have been present at that time may be taken to have had a reasonable opportunity to cross-examine the person.

(4) If a representation-

(a) tends to damage the reputation of the person who made

(b) tends to show that that person has committed an offence; or

then, for the purposes of subsection (2) (d), the representation shall be taken to be against the interests of the person who made it.

(5) The hearsay rule does not prevent the admission or use of evidence of a previous representation adduced by a defendant, being evidence that is given by a person who saw, heard or otherwise perceived the making of the representation.

(6) Where evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply in relation to evidence of a previous representation about the matter adduced by some other party, being evidence that is given by a witness who, saw, heard or otherwise perceived the making of the second-mentioned representation.

Exception: criminal proceedings where maker available

59. (1) In a criminal proceeding, where the person who made a previous representation is available to give evidence about an asserted fact, the hearsay rule does not apply in relation to evidence of the previous representation that 4 is given by-

(a) that person if, at the time when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person; or

(b) a person who saw, heard or otherwise perceived the making of the representation being made, if-

(i) at the time when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation; and

(ii) the person who made it has been or is to be called to give evidence in the proceeding.

(2) Subsection (1) does not apply in relation to evidence adduced by the prosecutor of a representation that was made for the purpose of indicating the evidence that the person who made it would be able to give in a legal or administrative proceeding.

(3) Where subsection (1) applies in relation to a representation, a document containing the representation shall not unless the court gives leave, be tendered before the conclusion of the examination in chief of the person who made the representation.

Notice to be given

60. (1) Subject to the succeeding provisions of this section, the provisions of section 56 and sections 57 (2), 58 (2) and 58 (5) do not apply in relation to evidence adduced by a party unless that party has given notice in writing in accordance with rules of court or the regulations to each other party of the intention to adduce the evidence.

(2) Where such a notice has not been given, the court may, on the application of a party and subject to such conditions (if any) as the court thinks fit to impose, direct that one or more of those provisions is to apply-

(a) notwithstanding the failure of the party to give such notice; or

(b) in relation to specified evidence with such modifications as the court specifies.

(3) In a civil proceeding, where the writing by which notice is given discloses that it is not intended to call the person who made the previous representation concerned on a ground referred to in section 57 (2), a party may, not later than 7 days after notice has been given, by notice in writing in accordance with rules of court or the regulations given to each other party, object to the tender of the evidence, or of a specified part of the evidence.

(4) The notice shall set out the grounds on which the objection is based.

(5) The court may determine the objection on the application of a party made at or before the hearing.

(6) If the objection is unreasonable, the court may order that the party objecting shall, in any event, bear the costs (ascertained on a solicitor and client basis) incurred by another party-

(a) in relation to the objection; and

(b) in calling the person who made the representation to give evidence.

Subdivision C - other hearsay

Exception: business records

61. (1) Where a previous representation-

(a) is contained in a document that is or forms part of the records belonging to or kept by a business or at any time was or formed part of such a record; and

(b) was made or recorded in the document in the course of, or for the purposes of, a business-

then, if the representation was made-

(d) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact,

the hearsay rule does not prevent the admission or use of the document so far as it contains the representation.

(2) Subsection (1) does not apply if the representation was prepared or obtained for the purpose of conducting, or in contemplation of or in connection with, a legal or administrative proceeding.

(3) Where-

(a) the happening of an event of a particular kind is in question; and

(b) in the course of a business, a system has been followed of making and keeping a record of the happening of all events of that kind,

the hearsay rule does not prevent the admission or use of evidence that tends to prove that there is no record kept in accordance with that system of the happening of the event.

Exception: contents of tags, labels etc.

62. Where a document has been attached to an object or writing has been placed on a document or object, being a document or writing that may reasonably be supposed to have been so attached or placed in the course of a business, the hearsay rule does not prevent the admission or use of the document or writing.

Exception: telecommunications

63. Where a document has been-

(a) produced by a telecommunications installation; or

(b) received from the Australian Telecommunications Commission,

being a document that records a message that has been transmitted by means of a telecommunications service, the hearsay rule does not prevent the admission or use of a representation in the document as to-

(d) the date on which, the time at which or the place from which the message was sent; or

(e) the identity of the person to whom the message was addressed.

Exception: reputation as to certain matters

64. (1) The hearsay rule does not prevent the admission or use of evidence of-

(a) reputation that a man and a woman cohabiting at a particular time were married to each other at that time;

(b) reputation as to family history or a family relationship; or

(2) In a criminal proceeding, subsection (1) does not apply in relation to evidence adduced by the prosecutor, but, where evidence as mentioned in subsection (1) has been admitted, this subsection does not prevent the admission or use of evidence that tends to contradict it.

Exception: interlocutory proceedings

65. The hearsay rule does not prevent the admission or use of evidence adduced in an interlocutory proceeding if the party who adduces it also adduces evidence of its source.

Division 2 - opinion evidence

Exclusion of opinion evidence

66. (1) Evidence of an opinion is not admissible to prove the existence of a fact as to the existence of which the opinion was expressed.

(2) Where evidence of an opinion is relevant otherwise than as mentioned in subsection (1), that subsection does not prevent the use of the evidence to prove the existence of a fact as to the existence of which the opinion was expressed.

Exception: lay opinions

67. Where-

(a) an opinion expressed by a person is based on what the person saw, heard or otherwise noticed about a matter or event; and

(b) evidence of the opinion is necessary to obtain an adequate account of the person's perception of the matter or event,

the opinion rule does not prevent the admission or use of the evidence.

Exception: opinions based on specialised knowledge

68. Where a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not prevent the admission or use of evidence of an opinion of that person that is wholly or substantially based on that knowledge.

Ultimate issue and common knowledge rules abolished

69. Evidence of an opinion Is not inadmissible by reason only that it is about-

(a) a fact in issue; or

(b) a matter of common knowledge.

Division 3 - Admissions

Definition: sound recording

70. A reference in this Division to a sound recording includes a reference to a recording of visual images and sounds.

Hearsay and opinion rules: exception for admissions

71. (1) The hearsay rule and the opinion rule do not prevent the admission or use of-

(a) evidence of an admission; or

(b) evidence of a previous representation made in relation to an admission at the time when the admission was made or shortly before or shortly after that time, being a representation to which it is reasonably necessary to refer to understand the admission.

(2) Subject to subsection (3), where, by reason only of the operation of subsection (1), the hearsay rule and the opinion rule do not prevent the admission or use of evidence of an admission or of a previous representation as mentioned in subsection (1) (b), the evidence may, if admitted, be used only in relation to the case of the party who made the admission concerned and the case of the party who adduced the evidence.

(3) The evidence may be used in relation to the case of some other party if that other party consents but consent may. not be given in respect of part only of the evidence.

Exclusion of admissions influenced by violence etc.

72. Evidence of an admission is not admissible unless the court is satisfied that the-admission, and the making of the admission, were not influenced by violent, oppressive, inhuman or degrading conduct, whether toward the person who made the admission or toward some other person, or by a threat of conduct of that kind.

Criminal proceedings: reliability of admissions by defendants

73. (1) This section applies only in a criminal proceeding and only in relation to evidence of an admission made by a defendant.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) For the purposes of subsection (2), evidence that the admission is true or untrue is not relevant.

(4) Without limiting the matters that may be taken into account by the court, for the purposes of subsection (2) it shall take into account-

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning-

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or representation made to the person questioned.

Criminal proceedings: admissions by suspects

74. (1) This section applies only-

(a) in a criminal proceeding;

(b) in relation to evidence of an admission trade by a defendant who, at the time when the admission was made, was or ought reasonably to have been suspected by an investigating official of having committed an offence; and

(2) Evidence of the admission is not admissible unless-

(a) there is available to the court-

(i) a sound recording of the questioning, and of the admission; or

(ii) if it was not reasonably practicable to have made such a recording - a sound recording of questioning of the person who made the admission about the making of the admission, and of a representation by that person in the course of that questioning that the admission was made; or

(b) the questioning was conducted, and the admission made, in the presence of a person (not being an investigating official) who-

(i) was a legal practitioner acting for the person who made the admission; or

(ii) if no such legal practitioner was reasonably available, had been chosen by that person,

or it was not reasonably practicable to make such a recording or have such a person present.

(3) The hearsay rule and the opinion rule do not prevent the admission or use of a sound recording as mentioned in subsection (2) (a) (ii).

(4) Evidence of the admission is not admissible unless, before the admission was made, the person who made it was informed by an investigating official that, except and to the extent that the person is required by law to furnish specified information to the investigating official, the person need not say or do anything, or answer any questions, in connection with the investigation but that anything that he or she said or did might be given in evidence.

Exclusion of records of oral questioning

75. (1) where an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official, a document prepared by or on behalf of the official is not admissible in a criminal proceeding to prove the contents of the question, representation or response unless the defendant has, by signing, initialling or otherwise marking the document, acknowledged that the document is a true record of the question, representation or response.

(2) In subsection (1), "document" does not include a sound recording or a transcript of a sound recording.

Admissions made with authority

76. (1) Where it is reasonably open to find that-

(a) at the time when a previous representation was made, the person who made it had authority to make statements on behalf of a party in relation to the matter with respect to which the representation was made;

(b) at the time when a previous representation was made, the person who made it-

(i) was an employee of a party; or

(ii) had authority otherwise to act for a party,

and the representation related to a matter within the scope of the person's employment or authority; or

(c) a previous representation was made by a person in furtherance of a common purpose (whether lawful or not) that the person had with a party or with a party and one or more other persons,

the representation shall, for the purpose only of determining whether it is to be taken to be an admission, be taken to have been made by the party.

(2) For the purposes of the application of subsection (1), the hearsay rule does not prevent the admission or use of a previous representation made by a person that tends to prove-

(a) that the person had authority to make statements on behalf of a party in relation to a matter;

(b) that the person-

(i) was an employee of a party; or

(ii) had authority otherwise to act for 4 party;

(d) the existence at any time of a common purpose.

Proof of making of admission

77. Where it is reasonably open to find that a particular person made a previous representation, the court shall, for the purpose of determining whether evidence of the representation is admissible, find that the person made the representation.

Evidence of silence

78. (1) An inference unfavourable to a party may not be drawn from evidence that the party or some other person failed or refused to answer a question, or to respond to a representation put or made to the person in the course of official questioning.

(2) Where evidence of that kind may only be used to draw such an inference, it is not admissible.

(3) Subsection (1) does not prevent the use of the evidence to prove that the person failed or refused to answer the ' question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

Discretion to exclude admissions

79. In a criminal proceeding, where evidence of an admission is adduced by the prosecution and, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence, the court may-

(a) refuse to admit the evidence; or

(b) refuse to admit the evidence to prove a particular fact.

Division 4 - Evidence of judgments and convictions

Exclusion of evidence of judgments and convictions

80. (1) Evidence of the decision in a legal or administrative proceeding is not admissible to prove the existence of a fact that was in issue in the legal or administrative proceeding.

(2) Where evidence of such a decision is relevant otherwise than as mentioned in subsection (1), it may not be used for the purpose mentioned in that subsection.

Exceptions

81. (1) Section 80 (1) does not prevent the admission or use of evidence of a grant of probate, letters of administration or like order of a court to prove-

(a) the death or date of death of the person concerned; or

(b) the due execution of the testamentary document concerned.

(2) In a civil proceeding, section 80 (1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction-

(a) in respect of which a review or appeal (however described) has been instituted but not finally determined;

(b) that has been quashed or set aside; or

(3) where, by virtue of subsection (1) or (2), section 80 (1) does not prevent the admission or use of evidence, the hearsay rule and the opinion rule do not prevent the admission or use of that evidence.

Savings

82. Sections 80 and 81 do not affect the operation of-

(a) section 55 of the Defamation Act 1974 or any other law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding (including a criminal proceeding) for defamation;

(b) a judgment in rem; or

Division 5 - Evidence of conduct and character relevant to issues

Subdivision A - Preliminary

Definition

83. A reference in this Division to the doing of an act includes a reference to a failure to act.

Application

84. (1) This Division does not apply in relation to evidence that relates only to the credibility of a witness.

(2) This Division does not apply so far as 4 proceeding relates to bail.

(3) This Division does not apply in relation to evidence of the character, reputation or conduct of a person, or in relation to evidence of a tendency that a person has or had, if that character, reputation, conduct or tendency, respectively, is a fact in issue.

Use of evidence for other purposes

85. Where evidence is, because of this Division not admissible to prove any one of the following-

(a) a tendency of a person;

(b) whether a person did or could have done a particular act or had or could have had a particular state of mind; or

(c) the character of a person, but is admissible to prove any other of them or some other matter, the evidence may not be used to prove the tendency, act, state of mind or character.

Subdivision B - Tendency evidence

Exclusion of tendency evidence

86. Evidence of the character, reputation or conduct of a person, or of a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or to have a particular state of mind.

Subdivision C - conduct evidence

Exception: conduct (including of accused) to prove tendency

87. Where there is a question whether a person did a particular act or had a particular state of mind and it is reasonably open to find that-

(a) the person did some other particular act or had some other particular state of mind, respectively; and

(b) all the acts or states of mind, respectively, and the circumstances in which they were done or existed, are substantially and relevantly similar,

the tendency rule does not prevent the admission or use of evidence that the person did the other act or had the other state of mind, respectively.

Exclusion of evidence of conduct (including of accused) to prove improbability of co-incidence

88. Evidence that 2 or more events occurred is not admissible to prove that, because of the improbability of the events occurring co-incidentally, a person did a particular , act or had a particular state of mind unless it is reasonably open to find that-

(a) the events occurred and the person could have been responsible for them; and

(b) all the events, and the circumstances in which they occurred, are substantially and relevantly similar.

Further protections: prosecution evidence of conduct of accused

89. (1) This section applies in relation to evidence in a criminal proceeding adduced by the prosecutor and so applies in addition to sections 87 and 88.

(2) Evidence that the defendant did or could have done a particular act or had or could have had a particular state of mind, being an act or state of mind that is similar to an act or state of mind the doing or existence of which is a fact in issue, is not admissible unless-

(a) the existence of that fact in issue is substantially in dispute in the proceeding; and

(b) the evidence has substantial probative value.

(3) Without limiting the matters that the court 'may have regard to in determining whether the evidence has substantial probative value, it shall have regard to-

(a) the nature and extent of the similarity;

(b) in the case of evidence of a state of mind - the extent to which the state of mind is unusual or occurs infrequently; and

(i) the extent to which the act is unusual;

(ii) the likelihood that the defendant would have repeated the act;

(iii) the number of occasions on which similar acts have been done; and

(iv) the period that has elapsed between the time when the act was done and the time when the defendant is alleged to have done the act that the evidence is adduced to prove.

Notice to be given

90. (1) Subject to subsection (2) -

(a) section 87 does not apply in relation to evidence adduced by a party; and

(b) evidence adduced by a party to which section 88 applies is not admissible,

unless that party has given notice in writing in accordance with [rules of court] the regulations to each other party of the intention to adduce the evidence.

(2) The court may, on the application of a party and subject to such conditions (if any) as the court thinks fit to impose, direct that one or more of sections 87 or 88 is or are to apply-

(a) notwithstanding the failure of the party to give such notice; or

(b) in relation to specified evidence - with such modifications as the court specifies.

Subdivision D - Character evidence

Exception: character of accused

91. (1) This section applies only in a criminal proceeding.

(2) The hearsay rule, the opinion rule and the tendency rule do not prevent the admission or use of evidence adduced by a defendant that tends to prove that the defendant is, either generally or in a particular respect, a person of good character.

(3) Where evidence that tends to prove that the defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule and the tendency rule do not prevent the admission or use of evidence that tends to prove that the defendant is not generally a person of good character.

(4) Where evidence that tends to prove that the defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule and the tendency rule do not prevent the admission or use of evidence that tends to prove that the defendant is not a person of good character in that respect.

Exception: character of co-accuseds

92. (1) In a criminal proceeding, the hearsay rul e and the tendency rule do not prevent the admission or use of evidence of an opinion about a defendant adduced by some other defendant if-

(a) the person whose opinion it is has specialised knowledge based on the person's training, study or experience; and

(b) the opinion is wholly or substantially based on that knowledge.

(2) Where evidence of an opinion as mentioned in subsection (1) has been admitted, the hearsay rule, the opinion rule and the tendency rule do not prevent the admission or use of evidence to prove that that evidence should not be accepted.

Cross-examination of accused by leave only

93. A defendant in a criminal proceeding may not be cross-examined as to matters' arising out of evidence to which section 91 or 92 applies unless the court gives leave.

Division 6 - Credibility

Exclusion of evidence relevant to credibility

94. (1) Evidence that relates to the credibility of a witness is not admissible to prove that the evidence of the witness should or should not be accepted.

(2) Where such evidence is relevant otherwise than as mentioned in subsection (1), that subsection does not prevent the use of the evidence to prove that the evidence of the witness should or should not be accepted.

Exception: character of accused

95. (1) This section applies only in a criminal proceeding.

(2) The hearsay rule, the opinion rule and the credibility rule do not prevent the admission or use of evidence adduced by a defendant that tends to prove that the defendant is, either generally or in a particular respect, a person of good character.

(3) Where evidence that tends to prove that the defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule and the credibility rule do not prevent the admission or use of evidence that tends to prove that the defendant is not generally a person of good character.

(4) Where evidence that tends to prove that the defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule and the credibility rule do not prevent the admission or use of evidence that tends to prove that the defendant is not a person of good character in that respect.

Exception: cross-examination as to credibility

96. (1) The credibility rule does not prevent the admission or use of evidence that relates to the credibility of a witness and has been adduced in cross-examination of the witness.

(2) Where such evidence-

(a) is relevant only because it is relevant to the credibility of the witness; and

(b) does not have substantial probative value as to the credibility of the witness, it is not admissible.

(3) Without limiting the matters that the court may have regard to, in determining whether the evidence has substantial probative value it shall have regard to-

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation at a time when the witness was under an obligation to tell the truth; and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

Further protections: cross-examination of accused

97. (1) This section only applies in a criminal proceeding and so applies in addition to section 96.

(2) Subject to this section, a defendant may not be cross-examined as to a matter that is relevant only because it is relevant to the credibility of the defendant unless the court gives leave.

(3) Leave is not required for cross-examination by the prosecutor as to whether the defendant-

(a) is biased or has a motive to be untruthful;

(b) was or is unable to be aware of or recall matters to which his or her evidence relates; or

(4) Leave shall not be given for cross-examination by the prosecutor as to any other matter that is relevant only because it is relevant to the credibility of the defendant unless-

(a) evidence has been adduced by the defendant that tends to prove that the defendant is, either generally or in a particular respect, a person of good character; or

(b) evidence has been admitted that-

(i) was given by the defendant;

(ii) tends to prove that a witness called by the prosecutor has a tendency to be untruthful; and

(iii) was adduced solely or mainly to impugn the credibility of that witness.

(5) A reference in subsection (4) to evidence does not include-a reference to evidence of conduct-

(a) in the events in relation to which; or

(b) in relation to the investigation of the offence for which, the defendant is being prosecuted.

(6) Leave shall not be given for cross-examination by some other defendant unless the evidence that the defendant to be cross-examined has given includes evidence adverse to the first-mentioned defendant and that evidence has been admitted.

Where unsworn evidence given

98. In a criminal proceeding, where a defendant has given unsworn evidence only, sections 96 and 97 apply in relation to evidence that is relevant only because it is relevant to the credibility of that defendant as if that defendant had given sworn evidence and the evidence concerned had been adduced in cross-examination of the defendant.

Exception: rebutting denials by other evidence

99. (1) Where evidence that a witness-

(a) is biased or has a motive to be untruthful;

(b) has been convicted of an offence, including an offence against the law of a foreign country; or

is adduced otherwise than from the witness, the credibility rule does not prevent the admission or use of the evidence if the witness has denied the substance of the evidence.

(2) Where evidence that a witness-

(a) was or is unable to be aware of matters to which his or her evidence relates; or

(b) knowingly or recklessly made a false representation while under an obligation imposed by or under a law, including a-law of the Commonwealth, another State or a Territory or of a foreign country, to tell the truth,

is adduced otherwise than from the witness, the credibility rule does not prevent the admission or use of the evidence if-

(d) the court has given leave to adduce the evidence.

Exception: application of certain provisions to maker of representations

100. Where

(a) by virtue of one of the provisions of Division 1, the hearsay rule does not prevent the admission of evidence of a previous representation;

(b) evidence of the representation has been admitted; and

the credibility rule does not prevent the admission or use of evidence about matters as to which the person could have been cross-examined if he or she had given evidence.

Exception: re-establishing credibility

101. (1) The credibility rule does not prevent the admission or use of evidence adduced in re-examination of a witness.

(2) The credibility rule does not prevent the admission or use of evidence that explains or contradicts evidence adduced as mentioned in section 98 or 100, if the court gives leave to adduce that evidence.

(3) Without limiting subsection (1) or (2), where-

(a) evidence of a prior inconsistent statement of a witness has been admitted; or

(b) it is suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,

the credibility rule does not prevent the admission or use of evidence of a prior consistent statement of the witness if the court gives leave to adduce the evidence.

Division 7 - Identification evidence

Application of Division

102. This Division applies only in a criminal proceeding.

Exclusion of identification evidence

103. (1) Identification evidence adduced by the prosecutor is not admissible unless-

(a) either-

(i) an identification parade that included the defendant was held before the identification was made; or

(ii) it would not have been reasonable to have held such a parade; and

(b) the identification was made without the person who made it having been intentionally influenced to make it.

(2) Without limiting the matters that may be taken into account by the court, in determining whether it was reasonable to hold an identification parade as mentioned in subsection (1) it shall take into account-

(a) the kind of offence, and the gravity of the offence, concerned;

(b) the importance of the evidence;

(i) if the defendant refused to co-operate in the conduct of the parade - to the manner and extent of, and the reason (if any) for, the refusal; and

(ii) in any case - whether the identification was made at or about the time of the commission of the relevant offence; and

(d) the appropriateness of holding such a parade having regard, among other things, to the relationship (if any), between the defendant and the person who made the identification.

(3) Where-

(a) the defendant refused to co-operate in the conduct of an identification parade unless a legal practitioner acting for him or her was present while it was being held; and

(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such a legal practitioner so to be present,

it shall be presumed that it would not have been reasonable to have held an identification parade at that time.

(4) In determining whether it was reasonable to have held an identification parade, the court shall not take into account the availability of pictures that could be used in making identifications.

Exclusion of evidence of identification by pictures

104. (1) This section-

(a) applies in relation to identification evidence adduced by the prosecutor where the identification was made wholly or partly as a result of the person who made the identification examining pictures kept for the use of police officers; and

(b) applies in addition to section 103.

(2) Where a defendant was in the custody of a police officer in connection with the investigation of an offence at the time when the pictures were examined, the identification evidence is not admissible unless-

(a) the picture of the defendant that was examined was made after the defendant had been taken into that custody; or

(b) the pictures examined included a reasonable number of pictures of persons who were not at the time when the pictures of those persons were made, in the custody of a police officer in connection with the investigation of an offence,

and the identification was made without the person who made it having been intentionally influenced to make it.

(3) In any other case to which this section applies, the identification evidence is not-admissible unless the pictures examined included a reasonable number of pictures of persons who were not, at the time when the pictures were made, in the custody of a police officer in connection with the investigation of an offence.

(4) Where evidence concerning an identification of a defendant that was made after examining a picture has been adduced by that defendant, the preceding provisions of this section do not render inadmissible evidence adduced by the prosecutor, being evidence that contradicts or qualifies that evidence.

(5) In this section-

(a) "picture" includes "photograph"; and

(b) a reference to the making of a picture includes a reference to the taking of a photograph.

Directions to jury

105. (1) Where identification evidence has been admitted, the Judge shall, if the defendant so requests, inform the jury that there is a special need for caution before accepting identification evidence and of the reasons for that need for caution, both generally and in the circumstances of' the case.

(2) In particular and without limiting subsection (1), the Judge shall warn the jury that it should not find, on the basis of the identification evidence, that the defendant was a person by whom the relevant offence was committed unless-

(a) there are, in relation to the identification, special circumstances that tend to support the identification; or

(b) there is substantial evidence (not being identification evidence) that tends to prove the guilt of the defendant and the jury accepts that evidence.

(3) Special circumstances include-

(a) the defendant being known to the person who made the identification; and

(b) the identification having been made on the basis of a characteristic that is unusual.

(4) Where-

(a) it is not reasonably open to find the defendant guilty except on the basis of identification evidence;

(b) there are no special circumstances of the kind mentioned in subsection (2) (a); and

(c) there is no evidence of the kind mentioned in subsection (2) (b), the Judge shall direct that the defendant be acquitted.

(5) Where identification evidence has been admitted, the Judge shall, if the defendant is not represented in the proceeding by a legal practitioner, inform the defendant that he or she may make a request under subsection (1).

Division 8 - Privileges

Subdivision A - Client legal privilege

Privilege in respect of legal advice and litigation etc.

106. (1) Where, on objection by a person (in this Subdivision called the client), the court finds that the adducing of evidence would result in the disclosure of-

(a) a confidential communication made between-

(i) the client and a legal practitioner; or

(ii) 2 or more legal practitioners acting for the client; or

(b) the contents of a document (whether delivered or not) that was prepared by or at the direction or request of the client or a legal practitioner,

for the dominant purpose of the legal practitioner, or of one of the legal practitioners, providing legal advice to the client, the court shall direct that the evidence not be adduced.

(2) Where, on objection by a person (in this Subdivision also called a client), the court finds that the adducing of evidence would result in the disclosure of-

(a) a confidential communication made between-

(i) 2 or more of the persons mentioned in subsection (1) ;

(ii) a person referred to in subsection (1) and some other person; or

(iii) the employees or agents of the client; or

(b) the contents of a document (whether delivered or not) that was prepared,

for the dominant purpose of providing or receiving professional legal services in relation to a legal or administrative proceeding, or an anticipated or pending legal or administrative proceeding, in which the client is or may be a party, the court shall direct that the evidence not be adduced.

(3) Where, on objection by a party who is not represented in the proceeding by a legal practitioner, the court finds that the adducing of evidence will result in the disclosure of-

(a) a confidential communication made between that party and some other person; or

(b) the contents of a document (whether delivered or not) that has been prepared by or at the direction or request of the party,

for the dominant purpose of preparing for or conducting the proceeding, the court shall direct that the evidence not be adduced.

Loss of client legal privilege

107. (1) Section 106 does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Section 106 does not prevent the adducing of evidence relevant to a question concerning the intentions or competence in law of a client or party who has died.

(3) Where, if the evidence were not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of a court, including a federal court or a court of another State or a Territory, section 106 does not prevent the adducing of the evidence.

(4) In a criminal proceeding, section 106 does not prevent a defendant from adducing evidence other than evidence of-

(a) a confidential communication made between a person who is being prosecuted for a related offence and a legal practitioner acting for that person in connection with that prosecution; or

(b) the contents of a document that was prepared by or at the direction or request of a person who is being prosecuted for a related offence or by a legal practitioner acting for that person in connection with that prosecution.

(5) Section 106 does not prevent the adducing of evidence of the making of a communication, or document, that affects a right of a person.

(6) Where a client or party has voluntarily disclosed the substance of evidence, not being a disclosure made-

(a) in the course of the making of the confidential communication or the preparation of the confidential record;

(b) as a result of duress or deception; or

(7) Where the communication or document was disclosed by a person who was, at the time, an employee or agent of a client or a legal practitioner, subsection (6) does not apply unless the employee or agent was authorised to make the disclosure.

(8) Where a confidential communication is contained in a document and a witness has used the document as mentioned in section 36 (1), section 106 does not prevent the adducing of evidence of the document.

(9) Where the substance of evidence has been disclosed with the express or implied consent of the client or party, section 106 does not prevent the adducing of the evidence.

(10) A disclosure by a client of a legal practitioner to a person who is a client of the same legal practitioner shall not be taken to be a disclosure for the purposes of subsection (9) if the disclosure concerns a matter in relation to which the legal practitioner is providing or is to provide professional legal services to both of them.

(11) Where, in relation to a proceeding in connection with a matter, 2 or more of the parties have, before the commencement of the proceeding, jointly retained a legal practitioner in relation to the matter, section 106 does not prevent one of those parties who retained the legal practitioner adducing evidence of-

(a) a communication made by any one of them t the legal practitioner; or

(b) a document prepared by or at the direction or request of any one of them, in connection with that matter.

(12) Section 106 does not prevent the adducing of evidence of-

(a) a communication made or a document prepared in furtherance of the commission of-

(i) a fraud;

(ii) an offence; or

(iii) an act that renders a person liable to a civil penalty; or

(b) a communication or a document that the client knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power conferred by or under an enactments Commonwealth Act, an Act of another State or a British Act applying as part of the law of another State.

(13) For the purposes of subsection (12), where-

(a) the commission of the fraud, the offence or act, or the abuse of power, is a fact in issue; and

(b) there are reasonable grounds for finding that-

(i) the fraud, offence or act, or the abuse of power, was committed; and

(ii) the communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power,

the court may find that the communication was so made or the document so prepared, respectively.

(14) Where, by virtue of one of the preceding provisions of this section, section 106 does not prevent the adducing of evidence of a communication, that section does not prevent the adducing of evidence of a communication that is reasonably necessary to enable a proper understanding of the first-mentioned communication.

(15) A reference in this section to the commission of an act includes a reference to a failure to act.

Definitions

108. In this Subdivision-

"client" includes-

(a) an employer (not being a legal Practitioner) of a legal practitioner;

(b) an employee or agent of a client;

(c) if the client is a person in respect of whose person, estate or property a manager or committee or other person (however described) is for the time being acting under a law, including a law of another State or a Territory that relates to persons of unsound mind - a person so acting; and

(d) if the client has died - a personal representative of the client,

and, in relation to a confidential communication made by a client in respect of property in which the client had an interest, also includes a successor in title to that interest;

"legal practitioner" includes an employee or agent of a legal practitioner;

"party" includes-

(a) an employee or agent of a Party;

(b) if the party is a person in respect of whose person, estate or property a manager or committee or other person (however described) is for the time being acting under a law, including a law of another State or a Territory that relates to persons of unsound mind - a person so acting; and

and, in relation to a confidential communication made by a party in respect of property in which the party had an interest, also includes a successor in title to that interest.

Subdivision B - Other privileges

Privilege in respect of confidential communications and records

109. (1) Where, on the application of a person who is an interested person in relation to a confidential communication or a confidential record, the court finds that, if evidence of the communication or record were to be adduced in the proceeding, the likelihood of-

(a) harm to an interested person;

(b) harm to the relationship in the course of which the confidential communication was made or the confidential record prepared; or

(c) harm to relationships of the kind concerned, together with the extent of that harm, outweigh the desirability of admitting the evidence, the court may direct that the evidence not be adduced.

(2) Without limiting the matters that may be taken into account by the court, for the purposes of subsection (1) it shall take into account-

(a) the importance of the evidence in the proceeding;

(b) if the proceeding is a criminal proceeding - whether the evidence is adduced by the defendant or by the prosecutor;

(d) whether an interested person has consented to the evidence being adduced;

(e) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(f) any means available to limit publication of the evidence.

(3) Subsection (1) does not apply to a communication or document-

(a) the making of which affects a right of a person;

(b) that was made or prepared in furtherance of the commission of-

(i) a fraud;

(ii) an offence; or

(iii) an act that renders a person liable to a civil penalty; or

(c) that an interested person knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power conferred by or under an enactment, a Commonwealth Act, an Act of another State Act or a British Act applying as part of the law of another State.

(4) For the purposes of subsection (3), where-

(a) the commission of the fraud, offence or act, or the abuse of power, is a fact in issue; and

(b) there are reasonable grounds for finding that-

(i) the fraud, offence or act, or the abuse of power, was committed; and

(ii) the communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power,

the court may find that the communication was so made or the document so prepared, respectively.

(5) In this section, "interested person", in relation to a confidential communication or a confidential record, means a person by whom, to whom, about whom or on whose behalf the communication was made or the record prepared.

(6) A reference in this section to the commission-of an act includes a-reference to a failure to act.

Privilege in respect of self-incrimination in other proceedings

110. (1) Where a witness objects to giving evidence on the ground that the evidence may tend to prove that the witness-

(a) has committed an offence against or arising under a law of or in force in this State, the Commonwealth, another State or a Territory or the law of a foreign country; or

(b) is liable to a civil penalty,

the court shall, if there are reasonable grounds for the objection, inform the witness-

(c) that he or she need not give the evidence but that, if he or she gives the evidence, the court will give a certificate under this section; and

(d) of the effect of the certificate.

(2) If the witness declines to give the evidence, the court shall not require the witness to give it but, if the witness gives the evidence, the court shall cause the witness to be given a certificate under this section in respect of the evidence.

(3) Where-

(a) the objection has been overruled; and

(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection, the court shall cause the witness to be given such a certificate.

(4) Evidence in respect of which a certificate under this section has been given is not admissible against the person to whom the certificate was given in any legal or administrative proceeding, not being a criminal proceeding in respect of the falsity of the evidence.

(5) In a criminal proceeding, the preceding provisions of this section do not apply in relation to evidence that a defendant-

(a) did an act the doing of which is a fact in issue; or

(b) had a state of mind the existence of which is a fact in issue.

(6) A reference in this section to the doing of an act includes a reference to a failure to act.

Subdivision C - Evidence excluded in the public interest

Exclusion of evidence of reasons for judicial etc. decisions

111. (1) Evidence of the reasons for a decision made by a person-

(a) acting as Judge in a legal or administrative proceeding; or

(b) acting as an arbitrator in respect of a dispute that has been submitted to the person, or to the person and one or more other persons, for arbitration, or the deliberations of a person so acting interrelation to such a decision, may not be given by that person, or by a person who was under the direction or control of that person, in a proceeding to which this Act applies that is not the legal or administrative proceeding concerned.

(2) Subsection (1) does not prevent the admission or use, in a legal or administrative proceeding, of 'published reasons for a decision.

(3) Evidence of the reasons for a decision made by a member of a jury in a legal or administrative proceeding, or of the deliberations of a member of a jury in relation to such a decision, may not be given by any of the members of that jury in a proceeding to which this Act applies that is not the legal or administrative proceeding concerned. (4) Subsections (1) and (3) do not apply in a proceeding that is-

(a) a prosecution for one of more of the following offences:

(i) an offence against or arising under section 334, 335 or 336 of the Crimes Act 1900;

(ii) an offence against or arising under section 67 of the Jury Act 1977;

(iii) attempting to pervert the course of justice;

(iv) an offence connected with an offence mentioned in subparagraph (i), (ii) or (iii), including an offence of conspiring to commit such an offence;

(b) in respect of a contempt of a court; or

Exclusion of evidence of matters of state

112. (1) Where the public interest in admitting evidence that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the evidence, the court may, either of its own motion or on the application of any person (whether or not a party), direct that the evidence not be adduced.

(2) For the purposes of subsection (1), evidence that relates to matters of state includes evidence-

(a) that relates to-

(i) the security or defence of Australia;

(ii) international relations or to relations between the Commonwealth and a State or relations between 2 or more States; or

(iii) the prevention or detection of offences or contraventions of the law; or

(b) which, if adduced-

(i) would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of a law, including a law of the Commonwealth or a State; or

(ii) would tend to prejudice the proper functioning of government, including the government of the Commonwealth or another State.

(3) Without limiting the matters that may be taken into account by the court, for the purposes of subsection (1) it shall take into account-

(a) the importance of the evidence in the proceeding;

(b) if the proceeding is a criminal proceeding - whether the evidence is adduced by the defendant or by the prosecutor;

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding;

(d) the likely effect of the evidence being adduced and any means available to limit its publication; and

(e) whether the substance of the evidence has already been published.

(4) For the purposes of subsection (1), the court may inform itself in any manner the court thinks fit.

(5) A reference in this section to a State includes a reference to a Territory.

Exclusion of evidence of settlement negotiations

113. (1) Evidence may not be adduced of-

(a) a communication made-

(i) between persons in dispute; or

(ii) between one or more persons in dispute and a third party, being a communication made in connection with an attempt to negotiate a settlement of the dispute; or

(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

(2) Subsection (1) does not apply where-

(a) the persons in dispute consent to the evidence being adduced or, if one of those persons has tendered the communication or document in evidence in some other legal or administrative proceeding, all the other persons so consent;

(b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute;

(i) began an attempt to settle the dispute; and

(ii) included a statement to the effect that it was not to be treated as confidential;

(d) the communication or document relates to an issue in dispute and the dispute, so far as it relates to that issue, has been settled;

(e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute;

(f) the making of the communication, or the preparation of the document, affects a right of a person;

(g) the communication was made, or the document prepared, in furtherance of the commission of-

(i) a fraud;

(ii) an offence; or

(iii) an act that renders a person liable to a civil penalty; or

(h) a party to the dispute knew or ought reasonably to have known that the communication was made, or the document prepared, in furtherance of a deliberate abuse of a power conferred by or under an enactment, a Commonwealth Act, an Act of another State or a British Act applying as part of the law of another State.

(3) For the purposes of subsection (2) (g), where-

(a) the commission of the fraud, the offence or the act is a fact in issue; and

(b) there are reasonable grounds for finding that-

(i) the fraud, offence or act was committed; and

(ii) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act, the court may find that the communication was so made or the document so prepared, respectively.

(4) For the purposes of subsection (2) (h), where-

(a) the abuse of power is a fact in issue; and

(b) there are reasonable grounds for finding that a communication was made or document prepared in furtherance of the abuse of power, the court may find that the communication was so made or the document so prepared, respectively.

(5) A reference in this section to-

(a) a dispute is a reference to a dispute of a kind in respect of which relief may be given in a legal or administrative proceeding;

(b) an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding;

(d) the commission of an act includes a reference to a failure to act.

Subdivision D - General

Court to inform of rights etc.

114. Where it appears to the court that a witness or a party may have grounds for making an application or objection under one of the preceding provisions of this Division, the court shall satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision.

Court may inspect etc. documents

115. Where a question arises under this Division in relation to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.

Certain evidence inadmissible

116. Evidence that, by or under a provision of this Division, may not be adduced or given in a proceeding is not admissible in the proceeding.

Division 9 - Discretions to exclude evidence

General discretion to exclude

117. Where the probative value of evidence is substantially outweighed by the danger of unfair prejudice or confusion or the danger that the evidence might mislead or cause or result in undue waste of time, the court may refuse to admit the evidence.

Criminal proceedings: discretion to exclude prejudicial evidence

118. In a criminal proceeding, where the probative value of evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, the court may refuse to admit the evidence.

Discretion to exclude improperly obtained evidence

119. (1) Evidence that was obtained-

(a) improperly or in contravention of a law; or

(b) in consequence of an impropriety or of a contravention of a law,

shall not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained.

(2) Without limiting subsection (1), where-

(a) an admission was made during or in consequence of questioning; and

(b) the person conducting the questioning knew or ought reasonably to have known that-

(i) the doing or omission of an act was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(ii) the making Of a false statement was likely to cause the person who was being questioned to make an admission,

but nevertheless, in the course of that questioning, the person conducting the questioning did or omitted to do the act or made the false statement, evidence of the admission, and evidence obtained in consequence of the admission, shall be taken to have been obtained improperly.

(3) Without limiting the matters that may be taken into account by the court, for the purposes of subsection (1) it shall take into account-

(a) the probative value of the evidence;

(b) the importance of the evidence in the proceeding;

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding;

(d) the gravity of the impropriety or contravention;

(e) whether the impropriety or contravention was deliberate or reckless;

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights;

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty, if any, of obtaining the.)evidence without impropriety or contravention of a law.

PART 6 - OTHER ASPECTS OF PROOF

Division 1 - Judicial notice

Matters of law

120. (1) Proof shall not be required about matters of law, including the provisions and coming into operation, in whole or in part, of-

(a) an Act, an Imperial Act, a Commonwealth Act, an Act of another State or an Act or Ordinance of a Territory; or

(b) an instrument of a legislative character (including regulations, statutory rules and by-laws) made or issued under or by authority of such an Act or Ordinance, being an instrument-

(i) that is required by or under an enactment to be published in a government or official gazette (by whatever name called); or

(ii) the making or issuing of which is so required to be notified in a government or official gazette, (by whatever name called).

(2) The Judge may inform himself or herself about those matters in any manner that the Judge thinks fit.

Matters of common knowledge etc.

121. (1) Proof shall not be required about knowledge that is not reasonably open to question and is-

(a) common knowledge in the locality in which the proceeding is being held or generally; or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2) The Judge may acquire knowledge of that kind in any manner that the Judge thinks fit.

(3) The court (if there is a jury, including the jury) shall take knowledge of that kind into account.

(4) The Judge shall give a party such opportunity to make submissions, and to refer to relevant information, in relation to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

Certain Crown certificates

122. This Division does not exclude the application of the principles and rules of the common law and of equity relating to the effect of a certificate given by or on behalf of the Crown with respect to a matter of international affairs.

Division 2 - Documents

Definitions

123. (1) A reference in this Division to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence.

(2) For the purposes of this Division, where a document is not an exact copy of a document in question but is identical to the document in question in all relevant respects, it mal be taken to be a copy of the document in question.

"Best evidence" rule abolished 124. The principles and rules of the common law that relate to the mode of proof of the contents of documents are abolished.

Proof of contents of documents

125. (1) A party may adduce evidence of the contents of a document in question by tendering the document in question or-

(a) by adducing evidence of an admission made by some other party to the proceeding as to the contents of the document in question;

(b) by tendering a document that-

(i) is or purports to be a copy of the document in question; and

(ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents;

(c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing) - by tendering a document that is or purports to be a transcript of the words;

(d) if the document in question is an article or thing on or in which information is stored in such a manner that it cannot be used by the court unless a device is used to retrieve, produce or collate it - by tendering a document that was or purports to have been produced by use of the device;

(e) by tendering a document that-

(i) forms part of the records of or kept by a business (whether or not the business is still in existence); and

(ii) purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such a document; or

(f) if the document in question is a public document - by tendering a document that was or purports to have been printed-

(i) by the Government Printer or by the government or official printer of the Commonwealth, another State or a Territory; or

(ii) by the authority of the government or administration of this State, the Commonwealth, another State, a Territory or a foreign country, and is or purports to be a copy of the document in question.

(2) Subsection (1) applies in relation to a document in question, whether the document in question is available to the party or not.

(3) A party may adduce evidence of the contents of a document in question that is unavailable to the party-

(a) by tendering a document that is a copy of, or a faithful extract from or a summary of, the document in question; or

(b) by adducing oral evidence of the contents of the document in question.

Documents in foreign countries

126. Where a document in question is in a foreign country, section 125 (1) (b), (c), (d), (e) or (f) does not apply unless-

(a) the party who adduces evidence of the contents of the document in question has, not less than 14 days before the day on which the evidence is adduced, served on each other party a copy of the document proposed to be tendered; or

(b) the court directs that it is to apply.

Division 3 - Facilitation of proof

Evidence produced by machines,, processes etc.

127. (1) This section applies in relation to a document or thing produced wholly or partly by a device or process.

(2) Where it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily does what the party tendering the document or thing asserts it to have done, it shall be presumed, unless the contrary is proved, that, in producing the document or thing on the occasion in question, the device or process did what that party asserts it to have done.

(3) In the case of a document that is, or was at the time it was produced, part of the records of, or kept for the purposes of, a business (whether or not the business is still in existence), then, where the device or process is or was at that time used for the purposes of the business, it shall be presumed, unless the contrary is proved, that on the occasion in question the device or process did what the party adducing the evidence asserts it to have done.

(4) Subsection (3) does not apply in relation to the contents of a document that was produced for the purposes of, or for purposes that included the purposes of a legal or administrative proceeding.

Attestation of documents

128. It is not necessary to adduce the evidence of an attesting witness to a document (not being a testamentary document) to prove that the document was signed or attested as it purports to have been signed or attested.

Gazettes etc.

129. (1) It shall be presumed, unless the contrary is proved, that a document purporting-

(a) to be the Gazette;

(b) to be a government or official gazette (by whatever name called) of the Commonwealth, another State or a Territory; or

(c) to have been printed by authority of the government or administration of the State, the Commonwealth, another State, a Territory or a foreign country,

is what it purports to be and was published on the day on which it purports to have been published.

(2) Where there is produced to a court-

(a) a copy of the Gazette;

(b) a copy of a government or official gazette (by whatever name called) of the Commonwealth, another State or a Territory; or

(c) a document that purports to have been printed by authority of the government or administration of this State, the Commonwealth, another State, a Territory or a foreign country,

being a copy or document in which the doing of an act-

(d) by the Governor, the Governor-General or by the Governor of another State or the Administrator of a Territory; or

(e) by a person authorised or empowered by law to do the act,

is notified or published, it shall be presumed, unless the contrary is proved, that the act was duly done and, if the date on which the act was done appears in the copy or document, that it was done on that date.

Seals and signatures

130. (1) Where the imprint of a seal appears on a document and purports to be the imprint of-

(a) the Public Seal of the State;

(b) a Royal Great Seal;

(d) some other seal of the Commonwealth;

(e) a seal of Another State, a Territory or a foreign country; or

(f) the seal of a body (including a court or a tribunal), or a body corporate established by or under Royal Charter or the law of this State, the Commonwealth, another State, a Territory or a foreign country,

it shall be presumed, unless the contrary is proved, that-

(g) the imprint is the imprint of the seal of which it purports to be the imprint; and

(h) the document was duly sealed as it purports to have been sealed.

(2) Where the imprint of a seal appears on a document and purports to be the imprint of the seal of-

(a) the Sovereign, the Governor, the Governor-General or the Governor of another State; or

(b) a person holding office under a law of this State, the Australian Constitution, a law of the Commonwealth, another State, a Territory or a foreign country,

it shall be presumed, unless the contrary is proved, that-

(d) the document was duly sealed by the person purporting to seal it acting in his or her official capacity.

(3) Where a document purports to have been signed by a person referred to in subsection (2) (a) or (b), it shall be presumed, unless the contrary is proved, that the document was duly signed by that person acting in his or her official capacity.

Public documents

131. A document that purports-

(a) to be a copy of, or a faithful extract from or a summary of, a public document; and

(b) to have been-

(i) sealed with the seal of a person who, or of a body that; or

(ii) certified as such a copy, extract or summary by a person who,

might reasonably be supposed to have the custody of the public document,

shall be presumed, unless the contrary is proved, to be a copy of the public document, or a faithful extract from or a summary of, the public document, respectively.

Documents produced from proper custody

132. Where a document that is or purports to be more than 20 years old is produced from proper custody, it shall be presumed, unless the contrary is proved, that the document is the document that it purports to be and, where it purports to have been executed or attested by a person, that it was duly executed or attested by that person.

Labels etc.

133. Where-

(a) a document has been attached to an object or writing has been placed on a document or object; and

(b) the document or writing so attached or placed may reasonably be supposed to have been so attached or placed in the course of a business,

it shall be presumed, unless the contrary is proved, that the ownership or the origin of the object or document is as stated in the document or writing.

Posts and telecommunications 134. (1) It shall be presumed, unless the contrary is proved, that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth day after having been posted.

(2) Where a message has been-

(a) sent by means of a telecommunications installation; or

(b) delivered to an office of the Australian Telecommunications commission for transmission by the Commission and any fee payable in respect of that transmission has been paid,

it shall be presumed, unless the contrary is proved, that the message was received by the person to whom it was addressed 24 hours after having been sent or delivered, respectively.

(3) Where a document that has been-

(a) received from the Australian Telecommunications Commission; or

(b) produced by a telecommunications installation, purports to contain a record of a message transmitted by means of a telecommunications' service, it shall be presumed, unless the contrary is proved, that the message-

(d) was sent by the person from whom or on whose behalf it purports to have been sent on the date on which and at the time at which, and from the place from which, it purports to have been sent.

(4) In this section, "postal article" has the meaning it has under the Postal Services Act 1975 of the Commonwealth.

Official statistics

135. Where a document purports to have been published by or on behalf of, or by arrangement with, the Australian Bureau of Statistics or the Australian Statistician, it shall be presumed, unless the contrary is proved, that the statistics contained in it were derived by the Bureau or by the Australian Statistician, as the case may be, from information obtained by the Bureau or by the Australian Statistician, respectively.

Division 4 - standard of proof

Civil proceedings: standard of proof

136. (1) In a civil proceeding, the court shall find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account, in determining whether it is satisfied as mentioned in subsection (1) it shall take into account the nature of the cause of action or defence, the nature of the subject-matter of the proceeding and the gravity of the matters alleged.

Criminal proceedings: standards of proof

137. (1) In a criminal proceeding, a court shall not find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.

(2) In a criminal proceeding, the court shall find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities.

Admissibility of evidence: standard of proof

138. (1) Except as otherwise provided by this Act, in any proceeding the court shall find that the facts necessary for determining-

(a), a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or

(b) any other question arising under this Act, have been proved if it is satisfied that they have been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account, in determining whether it is satisfied as mentioned in subsection (1) it shall take into account the importance of the evidence in the proceedings.

Division 5 - Corroboration

Corroboration requirements abolished

139. (1) It is not necessary that evidence on which a party relies be corroborated.

(2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a like or related offence.

(3) Notwithstanding any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, where there is a jury, it is not necessary that the Judge-

(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or like effect; or

(b) give a direction relating to the absence of corroboration.

Division 6 - warnings

Unreliable evidence

140. (1) This section applies in relation to the following kinds of evidence:

(a) evidence in relation to which Division 1 or 3 of Part 5 applies;

(b) identification evidence;

(c) evidence the reliability of which may be affected by age, ill-health (whether physical or mental), injury or the like;

(d) in a criminal proceeding-

(i) evidence given by a witness called by the prosecutor, being a person who might reasonably be supposed to have been concerned in the events giving rise to the proceeding; or

(ii) oral evidence of official questioning of a defendant, where the questioning is recorded in writing that has not been signed or otherwise acknowledged in writing by the defendant;

(e) in the case of a prosecution for an offence of a sexual nature - evidence given by a victim of the alleged offence;

(f) in the case of a proceeding against the estate of a deceased person - evidence adduced by or on behalf of a person seeking relief in the proceeding, being evidence about a matter about which the deceased person could, if he or she were alive, have given evidence.

(2) Where there is a jury and a party so requests, the Judge shall, unless there are good reasons for not doing so-

(a) warn the jury that the evidence may be unreliable;

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) It is not necessary that a particular form of words be used in giving the warning or information.

(4) This section does not affect any other power of the Judge to give a warning to, or to inform, the jury.

PART 7 - MISCELLANEOUS

Inferences

141. Where a question arises as to the application of a provision of this Act in relation to a document or thing, the court may-

(a) examine the document or thing; and

(b) draw any reasonable inference from it as well as from other matters from which inferences may properly be drawn.

Proof of certain matters by affidavit etc.

142. (1) Evidence of a fact that, by virtue of section 56, 57, 58, 61, 62 or 63 or of a provision of Division 2 or 3 of Part 6, is to be proved in relation to a document or thing may be given by a person who, at the relevant time or at some later time, had a position of responsibility in relation to the making or keeping of the document or thing.

(2) Notwithstanding Part 5, the evidence may include evidence based on the knowledge and belief of the person who gives it or on information that that person has.

(3) The evidence may be given by affidavit or, in the case of evidence that relates to a public document, by a statement in writing.

(4) An affidavit or statement that includes evidence based on knowledge, information or belief shall set out the source of the knowledge or information or the basis of the belief.

(5) A copy of the affidavit or statement shall be served on each party a reasonable time before the hearing of the proceeding.

(6) The party who tenders the affidavit or statement shall, if some other party so requests, call the deponent or person who made the statement to give evidence but need not otherwise do so.

Request to produce documents or call witnesses

143. (1) In this section, "request" means a request given by a party to some other party to do one or more of the following:

(a) to produce to the first-mentioned party or to permit that party, adequately and in an appropriate manner, to examine, test or copy the whole or a part of a specified document or thing;

(b) to call as a witness a specified person believed to be concerned in the production or maintenance of a specified document or thing or a specified person in whose possession a document or thing is believed to be or to have been at any time;

(c) in relation to a document of the kind referred to in paragraph (c) of the definition of "document" in section 3 - to permit the first-mentioned party, adequately and in an appropriate manner, to examine and test the document and the way in which it was produced and has been kept;

(d) in relation to evidence of a previous representation - to call as a witness the person who made the previous representation;

(e) in relation to evidence that a person has been convicted of an offence, being evidence to which section 81 (2) applies - to call as a witness a person who gave evidence in the proceeding in which the person was so convicted.

(2) Where, for the purpose of determining a question that relates to-

(a) a previous representation;

(b) evidence of a conviction of a person for an offence; or

a party has given a reasonable request to some other party and that other party has, without reasonable cause, failed or refused to comply with the request, the court may make one or more of the following orders:

(d) an order directing the other party to comply with the request;

(e) an order that the other party produce a specified document or thing, or call as a witness a specified person, as mentioned in subsection (1);

(f) such order with respect to adjournments or costs as is just,

or may refuse to admit the evidence in relation to which the request was made.

(3) Where the party who has failed to comply with a request proves that the document or thing to be produced or the person to be called is unavailable, it is reasonable cause to fail to comply with the request.

(4) Without limiting the matters that the court may take into account, in relation to the exercise of a function under subsection (2) it shall take into account-

(a) the importance in the proceeding of the evidence in relation to which the request was made;

(b) whether there is a genuine dispute in relation to the matter to which the evidence relates;

(c) whether there is a reasonable doubt as to the authenticity or accuracy of the evidence or of the document the contents of which are sought to be proved;

(d) whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered;

(e) in the case of a request in relation to evidence of a previous representation - whether there is a reasonable doubt as to the accuracy of the representation or of the information on which ie was based;

(f) in the case of a request as mentioned in subsection (1) (e) - whether some other person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained;

(g) whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and

(h) the nature of the proceeding.

Views etc.

144. (1) A Judge may, on application, order that a demonstration, experiment or inspection be held.

(2) A Judge shall not make an order under subsection (1) unless he or she is satisfied that-

(a) the parties will be given a reasonable opportunity to be present; and

(b) the Judge and, if there is a jury, the jury will be present.

(3) Without limiting the matters that the Judge may take into account, in determining whether to make an order under subsection (1) the Judge shall take into account-

(a) whether the parties will be present;

(b) whether the usefulness of the holding of the demonstration or inspection is outweighed by the danger of unfair prejudice or the danger that it might mislead or cause or result in undue waste of time;

(c) in the case of a demonstration - the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated; and

(d) in the case of an inspection - the extent to which the place or thing to be inspected has materially altered.

(4) The court (including, if there is a jury, the jury) may not itself conduct an experiment in the course of its deliberations.

(5) The preceding provisions of this section do hot apply in relation to the inspection of an exhibit by the court or by the jury.

Views etc. to be evidence

145. Subject to this Act, the court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.

The voir dire

146. (1) Where the determination of a question whether-

(a) evidence should be admitted (whether in the exercise of a discretion or not); or

(b) a witness is competent or compellable,

depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.

(2) Where there is a jury, a preliminary question whether evidence of an admission, or evidence to which section 119 (Discretion to exclude improperly obtained evidence) applies. should be admitted shall be heard and determined in the absence of the jury.

(3) Where there is a jury, the jury shall not be present at a hearing to determine any other preliminary question unless the court so orders.

(4) Without limiting the matters that the court may take into account, in determining whether to make an order as mentioned in subsection (3) it shall take into account-

(a) whether the evidence concerned will be adduced in the course of the hearing to determine the preliminary question; and

(b) whether the evidence to be adduced in the course of that hearing would be admitted if adduced at some other stage of the hearing of the proceeding (other than in some other hearing to determine a preliminary question or, in a criminal proceeding, in relation to sentencing).

(5) Section 110 (5) does not,-apply in a hearing to determine a question referred to in subsection (2) or a preliminary question.

(6) In the application of Parts 4 and 5 in a hearing to determine a question referred to in subsection (2) or a preliminary question, the facts in issue shall be taken to include the fact to which the hearing relates.

(7) Where there is a jury and the jury is not present at a hearing to determine a question referred to in subsection (2) or a preliminary question, evidence shall not be adduced otherwise in the proceeding about evidence that a witness gave in that hearing unless that evidence is inconsistent with evidence otherwise given by the witness in the proceeding.

(8) Notwithstanding section 27 (2), a defendant who gives sworn evidence in a hearing to determine a question referred to in subsection (2) or a preliminary question is not thereby precluded from giving unsworn evidence otherwise in the proceeding.

Waiver of rules of evidence

147. (1) The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of-

(a) Division 3 of Part 3;

(b) Divisions 1 to 6 (inclusive) of Part 5; or

in relation to particular evidence or generally.

(2) In a criminal proceeding, the consent of a defendant is not effective for the purposes of subsection (1) unless-

(a) the defendant is represented by a legal practitioner; or

(b) the court is satisfied that the defendant understands the consequences of giving the consent.

(3) In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if-

(a) the matter to which the evidence relates is not genuinely in dispute; or

(b) the application of those provisions would cause or involve unnecessary expense or delay.

(4) Without limiting the matters that the court may take into account, in determining whether to exercise the power conferred by subsection (3) it shall take into account-

(a) the importance of the evidence in the proceeding;

(b) the nature of the cause of action or defence and the nature of the subject-matter of the proceeding;

(d) the powers of the court, if any, to adjourn the hearing, to make some other order or to give a direction in relation to the evidence.

Leave etc. may be given on terms

148. (1) Where, by virtue of a provision of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account, in determining whether to give the leave, permission or direction it shall take into account-

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing;

(b) the extent to which to do so would be unfair to a party or to a witness;

(d) the nature of the proceeding; and

(e) the powers, if any, of the court to adjourn the hearing or to make some other order or to give a direction in relation to the evidence.

Additional powers

149. (1) The powers of a court in relation to the discovery or inspection of documents extend to enabling the court to make such orders as the court thinks fit (including orders as to methods of inspection, adjournments and costs) to ensure that the parties to a proceeding can adequately, and in an appropriate manner, inspect documents of the kind referred to in paragraph (c) of the definition of "document" in section 3.

(2) The power of a person or body to make rules of court in relation to any court extends to making rules for or with respect to the discovery of reports of persons intended to be called by a party to give evidence in a proceeding to which this Act applies.

(3) Without limiting subsection (2), rules made under that subsection may provide for the exclusion of evidence if the rules are not complied with, or for its admission on specified terms.

Regulations

151. The Governor may make regulations, not inconsistent with this Act, prescribing matters for or with respect to any matter-

(a) that by this Act is required or permitted to be prescribed; or

(b) that is necessary or convenient to be prescribed, for carrying out or giving effect to this Act.

SCHEDULE

(Sec. 26(l))

Oaths by witnesses

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

Oaths by interpreters

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

Affirmations by witnesses

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

Affirmations by interpreters

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

Table of Contents

Previous Page | Back to Lawlink Home | Top of Page

Last updated 29 April 2009

Hosted by