Evidence ACT 2008 (VIC) PDF

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Evidence Act 2008 No. 47 of 2008

TABLE OF PROVISIONS Section

Page

CHAPTER 1—PRELIMINARY

1

PART 1.1—FORMAL MATTERS

2

1 2 3 3A

Purpose Commencement Definitions Notes

2 2 2 3

PART 1.2—APPLICATION OF THIS ACT 4 5 6 7 8 9 10 11

Courts and proceedings to which Act applies Extended application of certain provisions Territories Act binds Crown Operation of Acts Application of common law and equity Parliamentary privilege preserved General powers of a court

4 4 5 6 6 6 6 7 7

CHAPTER 2—ADDUCING EVIDENCE

8

PART 2.1—WITNESSES

8

Division 1—Competence and compellability of witnesses

8

12 13 14 15 16 17 18 19 20

Competence and compellability Competence—lack of capacity Compellability—reduced capacity Compellability—Sovereign and others Competence and compellability—judges and jurors Competence and compellability—defendants in criminal proceedings Compellability of spouses and others in criminal proceedings generally Compellability of spouses and others in certain criminal proceedings Comment on failure to give evidence

i

8 8 10 10 11 11 12 13 14

Section

Page

Division 2—Oaths and affirmations 21 22 23 24 24A 25

15

Sworn evidence of witnesses to be on oath or affirmation Interpreters to act on oath or affirmation Choice of oath or affirmation Requirements for oaths Alternative oath Rights to make unsworn statements unaffected

Division 3—General rules about giving evidence 26 27 28 29 30 31 32 33 34 35 36

Court's control over questioning of witness Parties may question witnesses Order of examination in chief, cross-examination and reexamination Manner and form of questioning witnesses and their responses Interpreters Deaf and mute witnesses Attempts to revive memory in court Evidence given by police officers Attempts to revive memory out of court Effect of calling for production of documents Person may be examined without subpoena or other process

Division 4—Examination in chief and re-examination 37 38 39

15 15 16 17 17 17 18 18 18 18 18 19 19 20 20 21 22 22 23

Leading questions Unfavourable witnesses Limits on re-examination

23 24 25

Division 5—Cross-examination

25

40 41 42 43 44 45 46

Witness called in error Improper questions Leading questions Prior inconsistent statements of witnesses Previous representations of other persons Production of documents Leave to recall witnesses

PART 2.2—DOCUMENTS 47 48 49 50 51

25 26 28 29 30 31 32 33

Definitions Proof of contents of documents Documents in foreign countries Proof of voluminous or complex documents Original document rule abolished

ii

33 33 35 36 37

Section

Page

PART 2.3—OTHER EVIDENCE 52 53 54

38

Adducing of other evidence not affected Views Views to be evidence

38 38 39

CHAPTER 3—ADMISSIBILITY OF EVIDENCE

40

PART 3.1—RELEVANCE

42

55 56 57 58

Relevant evidence Relevant evidence to be admissible Provisional relevance Inferences as to relevance

42 42 42 43

PART 3.2—HEARSAY

44

Division 1—The hearsay rule

44

59 60 61

The hearsay rule—exclusion of hearsay evidence Exception—evidence relevant for a non-hearsay purpose Exceptions to the hearsay rule dependant on competency

Division 2—"First-hand" hearsay 62 63 64 65 66 66A 67 68

47

Restriction to "first-hand" hearsay Exception—civil proceedings if maker not available Exception—civil proceedings if maker available Exception—criminal proceedings if maker not available Exception—criminal proceedings if maker available Exception—contemporaneous statements about a person's health etc. Notice to be given Objections to tender of hearsay evidence in civil proceedings if maker available

Division 3—Other exceptions to the hearsay rule 69 70 71 72 73 74 75

Exception—business records Exception—contents of tags, labels and writing Exception—electronic communications Exception—Aboriginal and Torres Strait Islander traditional laws and customs Exception—reputation as to relationships and age Exception—reputation of public or general rights Exception—interlocutory proceedings

PART 3.3—OPINION 76 77 78

44 46 46

47 47 48 49 52 54 54 55 56 56 57 58 59 59 60 60 61

The opinion rule Exception—evidence relevant otherwise than as opinion evidence Exception—lay opinions

iii

61 62 62

Section

Page

78A Exception—Aboriginal and Torres Strait Islander traditional laws and customs 79 Exception—opinions based on specialised knowledge 80 Ultimate issue and common knowledge rules abolished PART 3.4—ADMISSIONS 81

62 62 63 64

Hearsay and opinion rules—exception for admissions and related representations Exclusion of evidence of admissions that is not first-hand Exclusion of evidence of admissions as against third parties Exclusion of admissions influenced by violence and certain other conduct Criminal proceedings—reliability of admissions by defendants Exclusion of records of oral questioning Admissions made with authority Proof of admissions Evidence of silence Discretion to exclude admissions

65 66 67 68 69 69 70

PART 3.5—EVIDENCE OF JUDGMENTS AND CONVICTIONS

71

82 83 84 85 86 87 88 89 90

91 92 93

Exclusion of evidence of judgments and convictions Exceptions Savings

PART 3.6—TENDENCY AND COINCIDENCE 94 95 96 97 98 99 100 101

Application Use of evidence for other purposes Failure to act The tendency rule The coincidence rule Requirements for notices Court may dispense with notice requirements Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

64 65 65

71 71 72 73 73 73 73 73 74 75 75 76

PART 3.7—CREDIBILITY

78

Division 1—Credibility evidence

78

101A

Credibility evidence

78

Division 2—Credibility of witnesses 102 103 104 105 106

The credibility rule Exception—cross-examination as to credibility Further protections—cross-examination as to credibility Further protections—defendants making unsworn statements Exception—rebutting denials by other evidence

iv

78 78 79 79 81 81

Section

Page

107

Exception—application of certain provisions to makers of representations 108 Exception—re-establishing credibility

Division 3—Credibility of persons who are not witnesses 108A 108B

Admissibility of evidence of credibility of person who has made a previous representation Further protections—previous representations of an accused who is not a witness

Division 4—Persons with specialised knowledge 108C

Exception—evidence of persons with specialised knowledge

PART 3.8—CHARACTER 109 110 111 112

82 82 83 84 84 86

Application Evidence about character of accused persons Evidence about character of co-accused Leave required to cross-examine about character of accused or co-accused

PART 3.9—IDENTIFICATION EVIDENCE 113 114 115 116

82 82

Application of Part Exclusion of visual identification evidence Exclusion of evidence of identification by pictures Directions to jury

86 86 87 87 88 88 88 90 92

PART 3.10—PRIVILEGES

93

Division 1—Client legal privilege

93

117 118 119 120 121 122 123 124 125 126

Definitions Legal advice Litigation Unrepresented parties Loss of client legal privilege—generally Loss of client legal privilege—consent and related matters Loss of client legal privilege—defendants Loss of client legal privilege—joint clients Loss of client legal privilege—misconduct Loss of client legal privilege—related communications and documents

93 95 95 96 96 97 99 99 100 100

Division 1A—Professional confidential relationship privilege

101

Division 1B—Sexual assault communications privilege

101

v

Section

Page

Division 2—Other privileges

101

127 Religious confessions 128 Privilege in respect of self-incrimination in other proceedings 128A Privilege in respect of self-incrimination—exception for certain orders etc. Division 3—Evidence excluded in the public interest 129 130 131

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

Division 4—General 131A 132 133 134

105 108 108 110 112 115

Application of Division to preliminary proceedings of courts Court to inform of rights to make applications and objections Court may inspect etc. documents Inadmissibility of evidence that must not be adduced or given

PART 3.11—DISCRETIONARY AND MANDATORY EXCLUSIONS 135 136 137 138 139

101 102

General discretion to exclude evidence General discretion to limit use of evidence Exclusion of prejudicial evidence in criminal proceedings Exclusion of improperly or illegally obtained evidence Cautioning of persons

115 116 116 116 117 117 117 117 117 119

CHAPTER 4—PROOF

122

PART 4.1—STANDARD OF PROOF

122

140 141 142

Civil proceedings—standard of proof Criminal proceedings—standard of proof Admissibility of evidence—standard of proof

PART 4.2—JUDICIAL NOTICE 143 144 145

122 122 123 124

Matters of law Matters of common knowledge Certain Crown certificates

124 125 125

PART 4.3—FACILITATION OF PROOF

126

Division 1—General

126

146 147

Evidence produced by processes, machines and other devices Documents produced by processes, machines and other devices in the course of business 148 Evidence of certain acts of justices, Australian lawyers and notaries public 149 Attestation of documents

vi

126 126 127 128

Section 150 151 152

Page Seals and signatures Seals of bodies established under State law Documents produced from proper custody

Division 2—Matters of official record 153 154 155 155A 156 157 158 159

Gazettes and other official documents Documents published by authority of Parliaments etc. Evidence of official records Evidence of Commonwealth documents Public documents Public documents relating to court processes Evidence of certain public documents Official statistics

Division 3—Matters relating to post and communications 160 161 162 163

Postal articles Electronic communications Lettergrams and telegrams Proof of letters having been sent by Commonwealth agencies

PART 4.4—CORROBORATION 164

128 130 130 130 130 132 132 133 134 135 135 136 137 137 137 138 139 140

Corroboration requirements abolished

PART 4.5—WARNINGS AND INFORMATION 165 Unreliable evidence 165A Warnings in relation to children's evidence 165B Delay in prosecution

140 141 141 142 143

PART 4.6—ANCILLARY PROVISIONS

145

Division 1—Requests to produce documents or call witnesses

145

166 167 168 169

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

Division 2—Proof of certain matters by affidavits or written statements 170 171 172 173

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

Division 3—Foreign law 174 175 176

145 146 146 147 150 150 151 152 152 152

Evidence of foreign law Evidence of law reports of foreign countries Questions of foreign law to be decided by judge

vii

152 153 153

Section

Page

Division 4—Procedures for proving other matters 177 178 179

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

CHAPTER 5—MISCELLANEOUS Application of certain sections in relation to Commonwealth records 183 Inferences 184 Accused may admit matters and give consents 185 Full faith and credit to be given to documents properly authenticated 186 Swearing of affidavits 187 No privilege against self-incrimination for bodies corporate 188 Impounding documents 189 The voir dire 190 Waiver of rules of evidence 191 Agreements as to facts 192 Leave, permission or direction may be given on terms 192A Advance rulings and findings 193 Additional powers 194 Witnesses failing to attend proceedings 195 Prohibited question not to be published 196 Proceedings for offences 197 Regulations __________________

154 154 155 156 157 158 159

182

SCHEDULE 1—Oaths and Affirmations

159 159 159 160 160 160 161 161 163 164 165 166 166 167 169 169 170

171

__________________ DICTIONARY

172

PART 1—DEFINITIONS

172

PART 2—OTHER EXPRESSIONS

185

1 2 3 4 5

References to businesses References to examination in chief, cross-examination and re-examination References to civil penalties Unavailability of persons Unavailability of documents and things

viii

185 186 186 186 187

Section 6 7 8 8A 9 10 11

Page Representations in documents Witnesses References to documents References to offices etc. References to laws References to children and parents References to de facto partners ═══════════════

188 188 189 189 189 190 190

ENDNOTES

192

INDEX

193

ix

Victoria

Evidence Act 2008† No. 47 of 2008 [Assented to 15 September 2008]

The Parliament of Victoria enacts:

CHAPTER 1—PRELIMINARY Introductory Note Outline of this Act This Act sets out the State rules of evidence. Generally speaking, the Act applies to proceedings in State courts and before other persons or bodies required to apply the laws of evidence (see section 4). Chapter 2 is about how evidence is adduced in proceedings. Chapter 3 is about admissibility of evidence in proceedings. Chapter 4 is about proof of matters in proceedings. Chapter 5 deals with miscellaneous matters.

1

Evidence Act 2008 No. 47 of 2008 Chapter 1—Preliminary

s. 1

The Dictionary at the end of this Act defines terms and expressions used in this Act. Related legislation This Act is in most respects uniform with the Evidence Act 1995 of the Commonwealth (the Commonwealth Act) and the Evidence Act 1995 of New South Wales (the New South Wales Act). The Acts are drafted in identical terms except so far as differences are identified by appropriate annotations to the texts, and except so far as minor drafting variations are required to accord with the drafting style of each jurisdiction. If one Act contains a provision that is not included in another Act, there is a gap in the numbering of the other Act in order to maintain consistent numbering for the other provisions. The Evidence Act 2001 of Tasmania also largely mirrors this legislation, but there are some departures.

PART 1.1—FORMAL MATTERS

1 Purpose The purpose of this Act is to make fresh provision for the law of evidence that is uniform with Commonwealth and New South Wales law. 2 Commencement (1) This Part and the Dictionary at the end of this Act come into operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision of this Act does not come into operation before 1 January 2010, it comes into operation on that day. 3 Definitions (1) Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings given to them in the Dictionary.

2

Evidence Act 2008 No. 47 of 2008 Chapter 1—Preliminary

s. 3A

(2) The Dictionary at the end of this Act forms part of this Act. (3) *

*

*

*

*

Notes 1

Some expressions used in this Act are defined in the Interpretation of Legislation Act 1984 and have the meanings given to them in that Act.

2

Subsection (2) differs from the Commonwealth Act and New South Wales Act.

3

The Commonwealth Act and New South Wales Act include an additional subsection regarding definitions which are unnecessary in Victoria due to the Interpretation of Legislation Act 1984.

3A Notes Notes do not form part of this Act. Note This section does not appear in the Commonwealth Act or New South Wales Act.

__________________

3

Evidence Act 2008 No. 47 of 2008 s. 4

Chapter 1—Preliminary

PART 1.2—APPLICATION OF THIS ACT

4 Courts and proceedings to which Act applies (1) This Act applies to all proceedings in a Victorian court, including proceedings that— (a) relate to bail; or (b) are interlocutory proceedings or proceedings of a similar kind; or (c) are heard in chambers; or (d) subject to subsection (2), relate to sentencing. (2) If such a proceeding relates to sentencing— (a) this Act applies only if the court directs that the law of evidence applies in the proceeding; and (b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters—the direction has effect accordingly. (3) The court must make a direction if— (a) a party to the proceeding applies for such a direction in relation to the proof of a fact; and (b) in the court's opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding. (4) The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.

4

Evidence Act 2008 No. 47 of 2008 Chapter 1—Preliminary

s. 5

(5) In this section, a proceeding that relates to sentencing includes a proceeding for an order under Part 4 of the Sentencing Act 1991. Notes 1

Section 4 of the Commonwealth Act differs from this section. It applies that Act to proceedings in a federal court or an Australian Capital Territory court. Some provisions of the Commonwealth Act extend beyond proceedings in federal courts and Australian Capital Territory courts (see sections 5, 185, 186 and 187 of the Commonwealth Act).

2

Victorian court is defined in the Dictionary. The definition includes persons or bodies required to apply the laws of e...