Evidence Act 2008 (Vic) PDF

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Authorised Version No. 020

Evidence Act 2008 No. 47 of 2008 Authorised Version incorporating amendments as at 18 February 2016 TABLE OF PROVISIONS Section

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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

4

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 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—accused 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 Authorised by the Chief Parliamentary Counsel

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8 8 10 10 11 11 12 14 14

Section

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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

Leading questions Unfavourable witnesses Limits on re-examination

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

18 18 19 19 19 20 21 21 22 22

25 25 27 28 29 30 31 32

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

Part 2.3—Other evidence 52

17 18

25

Part 2.2—Documents 47 48 49 50 51

17

22 23 25

Division 5—Cross-examination 40 41 42 43 44 45 46

15 15 16 16 17 17

32 32 34 35 36 37

Adducing of other evidence not affected Authorised by the Chief Parliamentary Counsel

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37

Section 53 54

Page Views Views to be evidence

37 38

Chapter 3—Admissibility of evidence

39

Part 3.1—Relevance

41

55 56 57 58

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

41 41 41 42

Part 3.2—Hearsay

43

Division 1—The hearsay rule

43

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

46

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 78A 79

43 45 45

46 46 47 48 51 53 53 54 55 55 56 57 58 58 59 59 60

The opinion rule Exception—evidence relevant otherwise than as opinion evidence Exception—lay opinions Exception—Aboriginal and Torres Strait Islander traditional laws and customs Exception—opinions based on specialised knowledge Authorised by the Chief Parliamentary Counsel

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60 61 61 61 61

Section 80

Page Ultimate issue and common knowledge rules abolished

Part 3.4—Admissions 81 82 83 84 85 86 87 88 89 90

63

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 accused Exclusion of records of oral questioning Admissions made with authority Proof of admissions Evidence of silence Discretion to exclude admissions

Part 3.5—Evidence of judgments and convictions 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

62

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

63 64 64 64 65 66 67 68 68 69 70 70 70 71 72 72 72 72 73 73 74 75 76

Part 3.7—Credibility

77

Division 1—Credibility evidence

77

101A Credibility evidence

77

Division 2—Credibility of witnesses 102 103 104 105 106 107 108

The credibility rule Exception—cross-examination as to credibility Further protections—cross-examination as to credibility Further protections—accused making unsworn statements Exception—rebutting denials by other evidence Exception—application of certain provisions to makers of representations Exception—re-establishing credibility

Authorised by the Chief Parliamentary Counsel

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77 77 78 78 80 80 81 81

Section

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Division 3—Credibility of persons who are not witnesses 108A Admissibility of evidence of credibility of person who has made a previous representation 108B Further protections—previous representations of an accused who is not a witness Division 4—Persons with specialised knowledge 108C Exception—evidence of persons with specialised knowledge Part 3.8—Character 109 110 111 112

82 83 84 84 86

Application Evidence about character of an accused 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

86 86 87 87 88

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

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—accused 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

Division 1C—Journalist privilege

101

126J Definitions 126K Journalist privilege relating to identity of informant Division 2—Other privileges 127 128

101 103 104

Religious confessions Privilege in respect of self-incrimination in other proceedings Authorised by the Chief Parliamentary Counsel

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104 104

Section

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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

111 111 113 115 118

Application of Part 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

108

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

118 119 119 119 120 120 120 120 121 122

Chapter 4—Proof

125

Part 4.1—Standard of proof

125

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

125 125 126 127

Matters of law Matters of common knowledge Certain Crown certificates

127 128 128

Part 4.3—Facilitation of proof

129

Division 1—General

129

146 147 148 149 150 151 152

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

Authorised by the Chief Parliamentary Counsel

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129 129 130 131 131 133 133

Section

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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

133 133 135 135 137 137 138 138 139 140 140 141 142 143 144

Corroboration requirements abolished

Part 4.5—Warnings and information 165 Unreliable evidence 165A Warnings in relation to children's evidence 165B Delay in prosecution

144 146 146 147 149

Part 4.6—Ancillary provisions

150

Division 1—Requests to produce documents or call witnesses

150

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

150 151 151 152

Division 2—Proof of certain matters by affidavits or written statements

154

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

157

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

Division 4—Procedures for proving other matters 177 178

155 155 156 157

Certificates of expert evidence Convictions, acquittals and other judicial proceedings Authorised by the Chief Parliamentary Counsel

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157 158 158 158 158 160

Section 179

Page Proof of identity of convicted persons—affidavits by members of State or Territory police forces Proof of identity of convicted persons—affidavits by members of Australian Federal Police Proof of service of statutory notifications, notices, orders and directions

180 181

Chapter 5—Miscellaneous

161 162 163 164

182

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

164 164 164 165 165 166 166 166 168 170 170 171 171 172 174 175 175

Schedule 1—Oaths and affirmations

176

Schedule 2—Transitional provisions

177

Dictionary

187 ═══════════════

Endnotes

208

1

General information

208

2

Table of Amendments

210

3

Amendments Not in Operation

212

4

Explanatory details

213

Authorised by the Chief Parliamentary Counsel

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Authorised Version No. 020

Evidence Act 2008 No. 47 of 2008 Authorised Version incorporating amendments as at 18 February 2016 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. 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.

Authorised by the Chief Parliamentary Counsel

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Evidence Act 2008 No. 47 of 2008 Part 1.1—Formal matters

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

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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.

Authorised by the Chief Parliamentary Counsel

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Evidence Act 2008 No. 47 of 2008 Part 1.1—Formal matters

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.

Authorised by the Chief Parliamentary Counsel

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Evidence Act 2008 No. 47 of 2008 Part 1.2—Application of this Act

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.

Authorised by the Chief Parliamentary Counsel

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Evidence Act 2008 No. 47 of 2008 Part 1.2—Application of this Act

(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...