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Evidence Act 1905

  • - C2004C03825
  • In force - Superseded Version
  • View Series
Act No. 4 of 1905 as amended, taking into account amendments up to Act No. 43 of 1994
Registered 25 Nov 2009
Start Date 09 Apr 1994
End Date 31 Mar 1995

EVIDENCE ACT 1905
- Updated as at 23 April 1994 (HISTACT CHAP 1385 #DATE 23:04:1994)

*1* The Evidence Act 1905 as shown in this reprint comprises Act No. 4, 1905 amended as indicated in the Tables below.
The Evidence Act 1905 was modified by the Defence Force Discipline Regulations as amended. (See Note 3)
Table of Acts
Act Date Date of Application
Number and of assent commencement saving or
year transitional
provisions
Evidence Act 1905
4, 1905 25 Aug 1905 25 Aug 1905
Evidence Act 1934
43, 1934 4 Aug 1934 4 Aug 1934 -
Statute Law Revision Act 1950
80, 1950 16 Dec 1950 31 Dec 1950 Ss. 16 and 17
Evidence Act 1956
48, 1956 30 June 1956 14 Aug 1956 -
Evidence Act 1963
28, 1963 30 May 1963 27 June 1963 -
Evidence Act 1964
53, 1964 30 May 1964 27 June 1964 -
Evidence Act 1973
80, 1973 19 June 1973 1 July 1973
(see Gazette 1973, No. 79)
-
Statute Law Revision Act 1973
216, 1973 19 Dec 1973 31 Dec 1973 Ss. 9 (1) and 10
Evidence Act 1974
31, 1974 1 Aug 1974 1 Aug 1974 -
Evidence Amendment Act 1978
14, 1978 14 Apr 1978 14 Apr 1978 -
Evidence Amendment Act 1979
139, 1979 23 Nov 1979 S. 3: 21 Apr 1980 (see s. 2 (2)
and Gazette 1980, No. S82)
Remainder: Royal Assent
-
Parliamentary Joint Sittings Amendment Act 1981
39, 1981 1 May 1981 1 May 1981 -
Census and Statistics Amendment Act (No. 2) 1981
177, 1981 8 Dec 1981 1 Mar 1983 (see Gazette 1983,
No. S36)
S. 12
Statute Law (Miscellaneous Provisions) Act (No. 2) 1983
91, 1983 22 Nov 1983 S. 3: 20 Dec 1983 (a)
S. 6 (1)
Evidence Amendment Act 1985
198, 1985 16 Dec 1985 1 Sept 1986 (see Gazette 1986,
No. S422) -
Industrial Relations (Consequential Provisions) Act 1988
87, 1988 8 Nov 1988 Ss. 1 and 2: Royal Assent
Remainder: 1 Mar 1989 (see s. 2
(2) and Gazette 1989, No. S53)
-
Law and Justice Legislation Amendment Act 1989
11, 1990 17 Jan 1990 Part 1 (ss. 1, 2), Part 3 (ss. 6,
7): Royal Assent
Ss. 8-10: 17 July 1990
Ss. 12, 13, 15 (1) (b) and 51 (2):
17 Jan 1990 (see s. 2 (5))
Remainder: 14 Feb 1990
-
Trade Practices (Misuse of Trans-Tasman Market Power) Act 1990
70, 1990 16 June 1990 1 July 1990 (see Gazette 1990,
No. S172)
-
Crimes Legislation Amendment Act 1991
28, 1991 4 Mar 1991 S. 74 (1): Royal Assent (b)
-
Law and Justice Legislation Amendment Act 1993
13, 1994 18 Jan 1994 S. 22: 13 Jan 1993
Part 6 (ss. 27-41): 11 Apr 1994
(see Gazette 1994, No. S126)
Remainder: Royal Assent
-
Foreign Evidence (Transitional Provisions and Consequential
Amendments) Act 1994
43, 1994 15 Mar 1994 Ss. 1, 2 and 5: Royal Assent
Remainder: 9 Apr 1994 (see s. 2
(2))
S. 4 (2)
(a) The Evidence Act 1905 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1983, subsection 2 (1) of which provides as follows:
"(1) Subject to this section, this Act shall come into operation on the twenty-eighth day after the day on which it receives the Royal Assent."
(b) The Evidence Act 1905 was amended by subsection 74 (1) only of the Crimes Legislation Amendment Act 1991, subsection 2 (1) of which provides as follows:
"(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent."
Table of Amendments
ad=added or inserted am=amended rep=repealed rs=repealed and substituted
Provision affected How affected
Heading to Part I rs. No. 53, 1964
S. 1A ad. No. 53, 1964
rep. No. 216, 1973
S. 2 am. No. 80, 1950; No. 48, 1956; No. 31, 1974; No.
39, 1981
Heading to Part II rs. No. 53, 1964
S. 3 am. No. 216, 1973
S. 4 am. No. 80, 1950; No. 48, 1956; No. 31, 1974; No.
139, 1979; No. 91, 1983; No. 87, 1988; No.
13, 1994
S. 4A ad. No. 53, 1964
am. No. 216, 1973
Heading to Part III rs. No. 53, 1964
S. 5 rs. No. 53, 1964
S. 6 am. No. 91, 1983
S. 7 am. No. 28, 1963; No. 31, 1974
Part IIIA (ss. 7A-7S)
ad. No. 14, 1978
S. 7A ad. No.14, 1978
am. No. 91, 1983
Ss. 7B-7H ad. No. 14, 1978
S. 7J ad. No. 14, 1978
am. No. 198, 1985; No. 28, 1991
Ss. 7K-7R ad. No. 14, 1978
S. 7S ad. No. 14, 1978
am. No. 139, 1979
Part IIIB (ss. 7T-7Z)
ad. No. 198, 1985
Part IIIB (ss. 7T-7W, 7WA, 7WB, 7X-7Z)
rep. No. 43, 1994
Ss. 7T-7W ad. No. 198, 1985
rep. No. 43, 1994
Ss. 7WA, 7WB ad. No. 11, 1990
rep. No. 43, 1994
Ss. 7X-7Z ad. No. 198, 1985
rep. No. 43, 1994
Part IIIC (ss. 7ZA-7ZG)
ad. No. 11, 1990
rep. No. 43, 1994
Ss. 7ZA-7ZG ad. No. 11, 1990
rep. No. 43, 1994
Heading to Part IV rs. No. 53, 1964
S. 8 rs. No. 80, 1973
S. 10A ad. No. 43, 1934
am. No. 177, 1981
Heading to Part V rs. No. 53, 1964
Part VA (Div. 1-Div. 6)
ad. No. 70, 1990
Ss. 11A-11R ad. No. 70, 1990
Heading to Part VI rs. No. 53, 1964

EVIDENCE ACT 1905 - TABLE OF PROVISIONS

TABLE

TABLE OF PROVISIONS
Section
PART I - PRELIMINARY
1. Short title
2. Interpretation
PART II - JUDICIAL NOTICE
3. Seal of Commonwealth to be judicially noticed
4. Certain signatures etc. to be judicially noticed
4A. Certain instruments to be judicially noticed
PART III - PROOF OF CERTAIN INSTRUMENTS
5. Proof of commissions and orders
6. Proof of public books and documents
7. Proof of proceedings in Parliament
PART IIIA - ADMISSIBILITY OF BUSINESS RECORDS
7A. Interpretation
7B. Admissibility of statements generally
7C. General restrictions on admissibility under section 7B
7D. Restrictions on admissibility under section 7B in criminal
proceedings
7E. Dispute as to happening of event
7F. Weight of evidence
7G. Credibility of the maker of a statement
7H. Inferences concerning admissibility
7J. Ancillary evidence
7K. Production of document etc.
7L. Authentication
7M. Rejection for unfairness etc.
7N. Withholding statement from jury
7P. Corroboration
7Q. Rejection of evidence in criminal proceedings
7R. Time of order
7S. Regulations and rules of court
PART IV - PROOF OF CERTAIN MATTERS
8. Proof of Gazette
9. Proof of printing by Government Printer
10. Proof of act done by Governor-General or Minister
10A. Proof of statistics
PART V - PROOF OF JUDICIAL PROCEEDINGS
11. Proof of judicial proceedings
PART VA - EVIDENCE OF CERTAIN NEW ZEALAND MATTERS
Division 1 - Preliminary
11A. Interpretation
11B. Application of Part
11C. Facsimiles
Division 2 - Judicial notice of certain
New Zealand matters
11D. New Zealand Acts
11E. Official New Zealand signatures, seals and stamps
Division 3 - Evidence of certain
New Zealand instruments
11F. Evidence of New Zealand official instruments
11G. Evidence of New Zealand proclamations and other acts of
state
11H. Evidence of public documents admissible in New Zealand under
New Zealand Acts
11J. Evidence of other New Zealand public documents
11K. Evidence of New Zealand documents of a public nature
Division 4 - Evidence of other New Zealand matters
11L. New Zealand Gazette
11M. Evidence of printing under authority of New Zealand
Government
11N. Acts done by New Zealand Governor-General or Minister
11P. By-laws and regulations under New Zealand Acts
Division 5 - Evidence relating to New Zealand judicial
proceedings
11Q. Evidence of act or process of New Zealand court
Division 6 - Miscellaneous
11R. Part not to derogate from existing Australian laws
PART VI - MISCELLANEOUS
12. Affidavit may be sworn before Justice of the Peace

EVIDENCE ACT 1905 - LONG TITLE

SECT

An Act relating to the Law of Evidence

EVIDENCE ACT 1905 - PART I
PART I - PRELIMINARY

EVIDENCE ACT 1905 - SECT 1
Short title

SECT

1. This Act may be cited as the Evidence Act 1905. *1* SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .

EVIDENCE ACT 1905 - SECT 2
Interpretation

SECT

2. In this Act, unless the contrary intention appears:
"joint sitting of the Parliament" means a joint sitting of the
members of the Senate and of the House of Representatives convened by the Governor-General in pursuance of section 57 of the Constitution or held pursuant to any Act;
"Courts" includes the High Court, the Commonwealth Court of Conciliation and Arbitration, the Commonwealth Industrial Court, all Courts exercising federal jurisdiction and all Courts of the several States and parts of the Commonwealth, and all Judges and justices and all arbitrators under any law of the Commonwealth or of a State, and all persons authorized by the law of the Commonwealth or of a State or by consent of parties to hear, receive, and examine evidence.

EVIDENCE ACT 1905 - PART II
PART II - JUDICIAL NOTICE*2*

*2* Part II - Provision is also made by the State and Territorial Laws and Records Recognition Act 1901 for judicial notice to be taken of certain official signatures and seals and for the proof of certain official documents and judicial proceedings.

EVIDENCE ACT 1905 - SECT 3
Seal of Commonwealth to be judicially noticed

SECT

3. All Courts shall take judicial notice of the impression of the Great Seal of Australia without evidence of the seal having been impressed or any other evidence relating thereto.

EVIDENCE ACT 1905 - SECT 4
Certain signatures etc. to be judicially noticed

SECT

4. (1) All Courts shall take judicial notice of:
(a) the official signature of any person who holds or has held the office of Governor-General, Minister of State, President of the Senate, Speaker of the House of Representatives, Secretary to the Federal Executive Council, Justice of the High Court, Chief Executive and Principal Registrar of the High Court, Senior Registrar or Deputy Registrar of the High Court, Clerk of the High Court, Registrar of the High Court, President or Deputy President of the Commonwealth Court of Conciliation and Arbitration, President, Deputy President or other member of the Commonwealth Conciliation and Arbitration Commission or of the Australian Industrial Relations Commission, Industrial Registrar or Deputy Industrial Registrar, or President or Judge or member of any Federal Court, or any office to which the Governor-General, by order published in the Gazette, declares this section to apply; and
(b) the official seal of every such person or Court, of the Commonwealth Conciliation and Arbitration Commission or of the Australian Industrial Relations Commission; and
(c) the fact that such person holds or has held such office;
if the signature or seal purports to be attached or appended to any judicial or official document.


(1A) An order may be made under subsection (1) in relation to an office that has ceased to exist prior to the making of the order.


(1B) An order under subsection (1) continues to apply in relation to an office, notwithstanding that the office ceases to exist after the making of the order.


(2) All Courts shall take judicial notice of the official signature of any person who is presiding, or has presided, at a joint sitting of the Parliament and of the fact that the person is so presiding or has so presided, if the signature purports to be attached to any official document.

EVIDENCE ACT 1905 - SECT 4A
Certain instruments to be judicially noticed

SECT

4A. Judicial notice shall be taken of all:
(a) proclamations and orders by the Governor-General made, or purporting to be made, under an Act or Imperial Act;
(b) regulations, rules or by-laws made, or purporting to be made, under an Act;
(c) Ordinances of a Territory; and
(d) regulations, rules or by-laws made, or purporting to be made, under a law (whether an Ordinance, Imperial Act or State Act) in force in a Territory.

EVIDENCE ACT 1905 - PART III
PART III - PROOF OF CERTAIN INSTRUMENTS

EVIDENCE ACT 1905 - SECT 5
Proof of commissions and orders

SECT

5. Evidence of any commission issued by the Governor-General, or of any order made by or under the authority of a Minister, may be given in all Courts:
(a) by the production of the Gazette purporting to contain it;
(b) by the production of a document purporting to be a copy thereof, and purporting to be printed by the Government Printer or by the authority of the Government of the Commonwealth.
(c) in the case of a commission issued by the Governor-General - by the production of a document purporting to be certified by the Secretary to the Federal Executive Council as a true copy thereof or extract therefrom; or
(d) in the case of an order made by or under the authority of a Minister - by the production of a document purporting to be certified by a Minister as a true copy thereof or extract therefrom.

EVIDENCE ACT 1905 - SECT 6
Proof of public books and documents

SECT

6. (1) Whenever any book or document of the Commonwealth is of such a public nature as to be admissible in evidence on its mere production from the proper custody, any copy thereof or extract therefrom shall be admissible in evidence in all Courts if:
(a) it is proved to be an examined copy or extract; or
(b) it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted.


(2) Subject to subsections (3) and (4), where an officer entrusted with the custody of a book or document to which subsection (1) applies is required by a Court to produce the book or document, it is sufficient compliance with the requirement for the officer to produce a copy of or extract from the book or document if it purports to be signed and certified by the officer as a true copy or extract.


(3) It is sufficient production of a copy or extract for the purposes of subsection (2) if the officer sends it by prepaid post, or causes it to be delivered, to the proper officer of the Court in which it is to be produced or to the person before whom it is to be produced.


(4) The Court before which a copy or extract is produced pursuant to subsection (2) may, if it thinks fit, direct the officer to produce the original book or document.

EVIDENCE ACT 1905 - SECT 7
Proof of proceedings in Parliament

SECT

7. (1) All documents purporting to be copies of the Votes and Proceedings or Journals or Minutes of either House of the Parliament, or of papers presented to either House of the Parliament, if purporting to be printed by the Government Printer, shall on their mere production be admitted as evidence thereof in all Courts.


(1A) A document purporting to be a copy of the official record of, or of any part of, proceedings of a joint sitting of the Parliament or of a paper presented to a joint sitting of the Parliament, if purporting to be printed by the Government Printer, shall on its mere production be admitted as evidence thereof in all Courts.


(2) A document that purports:
(a) to be a copy of a motion, resolution or proposed law moved in, agreed to by or introduced in a House of the Parliament, or a particular committee of a House of the Parliament, on a date specified in the document; and
(b) to be printed by the Government Printer;
is admissible in all Courts as evidence that a motion, resolution or proposed law in the terms set out in the document was moved in, agreed to by or introduced in that House, or that committee of that House, as the case may be, and that it was moved, agreed to or introduced on the date specified in the document.

EVIDENCE ACT 1905 - PART IIIA
PART IIIA - ADMISSIBILITY OF BUSINESS RECORDS

EVIDENCE ACT 1905 - SECT 7A
Interpretation

SECT

7A.*3* (1) In this Part, unless the contrary intention appears:
"business" includes:
(a) any business, profession, occupation, calling, trade or undertaking whether or not engaged in or carried on for profit and whether engaged in or carried on in Australia or elsewhere, including any business, profession, occupation, calling, trade or undertaking engaged in or carried on by the Crown in right of the Commonwealth or of a State; and
(b) the administration of the government of the Commonwealth, of a State, of a Territory or of another country, whether carried on in Australia or elsewhere;
"criminal proceeding" means a proceeding for an offence;
"derived" means derived, by the use of a computer or otherwise, by calculation, comparison, selection, sorting or consolidation or by accounting, statistical or logical procedures;
"document" includes:
(a) a book, plan, paper, parchment, film or other material on which there is writing or printing, or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them;
(b) a disc, tape, paper, film or other device from which sounds or images are capable of being reproduced; and
(c) any other record of information;
"proceeding" means a proceeding before the High Court or any court (not being a court of a Territory other than the Australian Capital Territory) created by or under an Act;
"qualified person", in relation to a statement made in the course of, or for the purposes of, a business, means a person who:
(a) at the time when the statement was made, was:
(i) an owner of the business or a person carrying on the business;
(ii) a servant or agent employed or engaged in the business;
(iii) a person retained for the purposes of the business; or
(iv) a person associated with the business in the course of
another business; and
(b) at that time:
(i) in the case of a statement that is not admissible in evidence
unless made by an expert on the subject matter of the statement - was such an expert; or
(ii) in any other case - had, or may reasonably be supposed to
have had, personal knowledge of the facts stated;
"statement" includes any representation of fact, whether made in words or otherwise.


(2) For the purposes of this Part, a statement in a document shall be taken to be made by a person if:
(a) it is written, made, dictated or otherwise produced by him; or
(b) it is recognised by him as his statement by signing, initialling or otherwise.


(3) For the purposes of this Part, a person shall be taken to be concerned in the making of a statement if:
(a) he made that statement; or
(b) he made a statement containing information:
(i) which the first-mentioned statement reproduces; or
(ii) from which the first-mentioned statement is derived, wholly
or in part. *3* Section 7A - The Evidence Act 1905 was modified by regulation 30 of the Defence Force Discipline Regulations as amended. The provision applicable to the above-mentioned Act is quoted below and is not incorporated in this reprint.
"30. For the purposes of section 146 of the Act, the definition of business in subsection 7A (1) of the Evidence Act 1905 in its application to proceedings before a service tribunal is modified:
(a) by omitting from paragraph (a) and (last occurring); and
(b) by inserting at the end the following word and paragraph:; and
(c) the control, operation and administration of the Defence Force or a part of the Defence Force;."

EVIDENCE ACT 1905 - SECT 7B
Admissibility of statements generally

SECT

7B. (1) Subject to this Part, where, in any proceeding, evidence of a fact is admissible, a statement of the fact in a document is admissible as evidence of the fact if:
(a) the document containing the statement forms part of a record of a business, whether or not the business is in existence at the time when the question of admissibility arises;
(b) the statement was made in the course of, or for the purposes of, the business; and
(c) the statement was made by a qualified person or reproduces, or was derived from, either or both of the following descriptions of information:
(i) information in one or more statements, each made by a
qualified person in the course of, or for the purposes of, the business;
(ii) information from one or more devices designed for, and used
for the purposes of the business in or for, recording, measuring, counting or identifying information, not being information based on information supplied by any person.


(2) This section makes a statement admissible notwithstanding:
(a) the rules against hearsay;
(b) the rules against secondary evidence of the contents of a document;
(c) that any person concerned in the making of the statement is a witness in the proceeding, whether or not he gives testimony consistent or inconsistent with the statement; or
(d) that the statement is in such a form that it would not be admissible if given as oral testimony;
but does not make admissible a statement that is otherwise inadmissible.


(3) In this section, "fact" includes opinion.

EVIDENCE ACT 1905 - SECT 7C
General restrictions on admissibility under section 7B

SECT

7C. (1) A statement is not admissible under section 7B in a proceeding if it was made or obtained for the purpose of, or in contemplation of, any judicial or administrative proceeding.


(2) Where a person proposes to tender, or tenders, a statement in evidence under section 7B, the court may:
(a) require that any other document related to the statement be produced; and
(b) if a document is not produced in accordance with the requirement - reject the statement or, if it has been received, exclude it.


(3) In this section, "judicial or administrative proceeding" means:
(a) a proceeding before any court, whether a court of Australia or of another country; or
(b) a proceeding before any other person or body (not being a court) authorized by law, whether a law of Australia or of another country, or by consent of parties, to hear or receive evidence.

EVIDENCE ACT 1905 - SECT 7D
Restrictions on admissibility under section 7B in criminal proceedings

SECT

7D. (1) This section applies in relation to a statement tendered in a criminal proceeding for admission under section 7B where the statement:
(a) is a statement made by a person; or
(b) reproduces, or is derived from, information supplied by a person.


(2) If a party to the proceeding, being a party opposed to the party tendering the statement, requires the tendering party to call a person concerned in the making of the statement as a witness in the proceeding, the statement is not admissible under section 7B unless:
(a) the tendering party calls the person as a witness in the proceeding; or
(b) it appears to the court:
(i) that the person is dead or is unfit, by reason of any physical
or mental incapacity, to attend as a witness;
(ii) that the person is outside Australia and it is not reasonably
practicable to secure his attendance;
(iii) that all reasonable steps have been taken to identify the
person and he cannot be identified;
(iv) that the identity of the person is known and all reasonable
steps have been taken to find him but he cannot be found;
(v) that, having regard to the time that has elapsed since the
person supplied the information and to all the other circumstances, the person cannot reasonably be expected to have any recollection of the matters dealt with in the statement; or
(vi) that, having regard to all the circumstances of the case,
undue delay or expense would be caused by calling the person as a witness.


(3) A statement made in connexion with, or in connexion with any investigation relating or leading to, a criminal proceeding is not admissible under section 7B.


(4) In this section, "criminal proceeding" includes a proceeding under section 77 of the Trade Practices Act 1974.

EVIDENCE ACT 1905 - SECT 7E
Dispute as to happening of event

SECT

7E. (1) Where, in any proceeding:
(a) the happening of an event of any description is in question; and
(b) in the course of a business, a system has been followed to make and keep a record of the happening of all events of that description;
oral or other evidence to establish that there is no record of the happening of the event in question is admissible to prove that the event did not happen.


(2) Where evidence is, or is proposed to be, tendered under this section, the court may:
(a) require that the whole or a part of the record concerned be produced; and
(b) if the whole or a part of the record required to be produced is not produced - reject the evidence or, if it has been received, exclude it.

EVIDENCE ACT 1905 - SECT 7F
Weight of evidence

SECT

7F. (1) In estimating the weight (if any) to be attached to a statement tendered for admission or admitted under section 7B, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including:
(a) in the case of a statement made by a person or a statement wholly or in part reproducing or derived from a statement made by a person:
(i) the recency or otherwise at the time when the person made his
statement of any relevant matter dealt with in his statement; and
(ii) the presence and nature, or the absence, of any incentive for
him to conceal or misrepresent any relevant matter in his statement;
(b) in the case of a statement wholly or in part reproducing or derived from information from one or more devices - the reliability of the device or devices; and
(c) in the case of a statement reproducing or derived from any information - the reliability of the means of reproduction or of derivation.


(2) In estimating the weight (if any) to be attached to evidence admissible under section 7E, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the evidence, including whether any person concerned with the system had any incentive to omit recording the happening of the event concerned and, if so, the nature of that incentive.

EVIDENCE ACT 1905 - SECT 7G
Credibility of the maker of a statement

SECT

7G. (1) Where:
(a) a person makes a statement;
(b) that statement, or a statement wholly or in part reproducing or derived from information in that statement, is tendered for admission, or is admitted, under section 7B in a proceeding; and
(c) that person is not called as a witness in the proceeding;
evidence is admissible in the proceeding as provided by this section.


(2) Evidence is admissible where, if the person had been called as a witness, the evidence would have been admissible for the purpose of destroying or supporting his credibility.


(3) Evidence is admissible to show that a statement made by the person is inconsistent with another statement made at any time by him.


(4) Notwithstanding subsections (2) and (3), evidence is not admissible of any matter of which, if the person had been called as a witness and denied the matter in cross-examination, evidence would not be admissible if it had been adduced by the cross-examining party.

EVIDENCE ACT 1905 - SECT 7H
Inferences concerning admissibility

SECT

7H. A court may, for the purpose of deciding questions of admissibility under this Part, draw inferences from the form or content of the document in which the statement is contained as well as from other matters from which inferences may lawfully be drawn.

EVIDENCE ACT 1905 - SECT 7J
Ancillary evidence

SECT

7J. (1) Evidence relevant to the matters mentioned in section 7B, 7D or 7E may, if given by an authorised person or if given by a person who had, at the relevant time or afterwards, a responsible position in relation to the making or keeping of the records concerned, be given on information and belief.


(2) Evidence given under subsection (1) may include evidence of the contents of a document notwithstanding that the document is not produced and that its non-production is not accounted for.


(3) Evidence relevant to a matter mentioned in section 7B, 7D or 7E shall not be given under subsection (1) by an authorised person unless it appears to the court that:
(a) it is not reasonably practicable for a person who had, at the relevant time or afterwards, a responsible position in relation to the making or keeping of the records concerned to give that evidence; or
(b) having regard to all the circumstances of the case, undue expense would be caused by calling a person referred to in paragraph (a) as a witness.


(4) In this section, "authorised person"
means:
(a) in a case where the evidence is given at a place outside Australia - an Australian Diplomatic Officer or an Australian Consular Officer, as defined by the Consular Fees Act 1955, exercising functions in that place; or
(b) in any case - a member of the Australian Federal Police of or above the rank of sergeant, a staff member of the Australian Federal Police whose salary is at least equal to that of a sergeant in the Australian Federal Police, or a person authorised by the Attorney-General for the purposes of this section.

EVIDENCE ACT 1905 - SECT 7K
Production of document etc.

SECT

7K. (1) For the purposes of section 7B:
(a) a statement in a document may, as prescribed or by leave of the court, be proved by the production of a copy of the document, or of the material part of the document;
(b) a statement in a document that is designed to be used to reproduce the statement in the form of a visible display or of sound may be proved by reproducing the statement in that form in the presence of the court; and
(c) a statement in a record of information made by the use of a computer may be proved by the production of a document produced by the use of a computer containing the statement in a form that can be understood by sight.


(2) For the purposes of section 7E, the absence of a record of the happening of an event in a record of information made by the use of a computer may be proved by the production of a document produced by the use of a computer containing a statement based on the absence of such a record.


(3) Where a person proposes to prove, or proves, a statement in a document otherwise than by producing the document, the court may require that the document be produced or be made available to the court or to other parties for examination or testing and, if the document is not so produced or made available, may reject the statement or, if it is in evidence, exclude it.


(4) Where a person proposes to prove, or proves, a statement by reproducing the statement in the form of a visible display or of sound, the court may direct a record of the statement to be produced and, if the record is not produced, may reject the statement or, if it is in evidence, exclude it.


(5) For the purposes of this section, "computer" means any device for storing or processing information.

EVIDENCE ACT 1905 - SECT 7L
Authentication

SECT

7L. For the purposes of this Part, a document, a copy of a document or a copy of part of a document may be authenticated in such manner as is prescribed or the court approves.

EVIDENCE ACT 1905 - SECT 7M
Rejection for unfairness etc.

SECT

7M. (1) Where a party to a proceeding tenders any evidence under this Part, and it appears to the court that:
(a) the weight of the evidence is too slight to justify its admission;
(b) the utility of the evidence is outweighed by a probability that its admission will unduly prolong the proceeding;
(c) the evidence may be unfair to any other party; or
(d) in a case where there is a jury - the evidence may mislead the jury;
the court may reject the evidence or, if it has been received, exclude it.


(2) This section does not affect the admissibility of any evidence otherwise than by virtue of this Part.

EVIDENCE ACT 1905 - SECT 7N
Withholding statement from jury

SECT

7N. Where:
(a) in a proceeding there is a jury;
(b) a statement in a document is admitted in evidence under this Part; and
(c) it appears to the court that, if the jury were to have the document with it during its deliberations, the jury might give the statement undue weight;
the court may direct that the document be withheld from the jury during its deliberations.

EVIDENCE ACT 1905 - SECT 7P
Corroboration

SECT

7P. For the purposes of any Act or rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement admissible under section 7B shall not be treated as corroboration of evidence given by a qualified person who was concerned in the making of the statement.

EVIDENCE ACT 1905 - SECT 7Q
Rejection of evidence in criminal proceedings

SECT

7Q. This Part does not affect the power of a court in a criminal proceeding to reject evidence which has been obtained illegally or would, if admitted, operate unfairly against the defendant.

EVIDENCE ACT 1905 - SECT 7R
Time of order

SECT

7R. A court may make orders concerning the admissibility of any statement or evidence under this Part at any stage of a proceeding.

EVIDENCE ACT 1905 - SECT 7S
Regulations and rules of court

SECT

7S. (1) The Governor-General may make regulations, not inconsistent with this Part, prescribing all matters required or permitted by this Part to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Part.


(2) The power of an authority to make rules regulating the practice and procedure of any court to proceedings in which this Part applies extends, for the purpose of regulating any proceedings in or before that court, to making any rules, not inconsistent with this Part or with any regulations made under this section, prescribing all matters required or permitted by this Part to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Part.


(3) Without limiting the generality of subsections (1) and (2), the matters that may be prescribed by regulations or rules under those subsections include the making of provision for or in relation to:
(a) the giving, by a party who proposes to tender a statement under section 7B or evidence under section 7E, to the court or to other parties of notice of his intention to do so and of particulars of the statement or evidence (including copies of any statement or document);
(b) the giving, by a party who has received notice from another party of his intention to tender a statement under section 7B or evidence under section 7E, to the court or to other parties of notice of his intention to dispute the statement or evidence and of particulars of the grounds on which he intends to dispute the statement or evidence;
(c) the production, by a party who proposes to tender a statement under section 7B or evidence under section 7E or to adduce evidence in answer to any such statement or evidence, to the court or to other parties for inspection of any document related to any such statement or evidence he proposes to tender;
(d) the making by a court of orders requiring a person who is not a party to a proceeding in the court to produce to the court, or to parties to the proceeding, for inspection any document that a party desires to inspect for the purposes of the application of this Part to the proceeding; and
(e) the proof of any of the matters mentioned in sections 7B, 7D and 7E by affidavit or statutory declaration.


(4) If a regulation or rule is made under this section for or in relation to the proof of any of the matters mentioned in sections 7B, 7D and 7E by affidavit or statutory declaration, the regulation or rule shall, if it is not otherwise so provided, provide for the attendance at the proceeding of the deponent or maker of any such affidavit or statutory declaration for cross-examination by any party who desires to cross-examine him.


(5) This section does not affect any power to make regulations or rules under any other Act.

EVIDENCE ACT 1905 - PART IV
PART IV - PROOF OF CERTAIN MATTERS

EVIDENCE ACT 1905 - SECT 8
Proof of Gazette

SECT

8. (1) The mere production of a paper purporting to be the Commonwealth of Australia Gazette shall in all Courts be evidence that the paper is the Commonwealth of Australia Gazette and was published on the day on which it bears date.


(2) The mere production of a paper purporting to be the Australian Government Gazette shall in all Courts be evidence that the paper is the Australian Government Gazette and was published on the day on which it bears date.

EVIDENCE ACT 1905 - SECT 9
Proof of printing by Government Printer

SECT

9. The mere production of a paper purporting to be printed by the
Government Printer or by the authority of the Government of the Commonwealth shall in all Courts be evidence that the paper was printed by the Government Printer or by such authority.

EVIDENCE ACT 1905 - SECT 10
Proof of act done by Governor-General or Minister

SECT

10. Where by any law at any time in force the Governor-General or a Minister is authorized or empowered to do any act, production of the Gazette purporting to contain a copy or notification of any such act shall in all Courts be evidence of the act having been duly done.

EVIDENCE ACT 1905 - SECT 10A
Proof of statistics

SECT

10A. (1) The mere production of a document purporting to be published by the Statistician and to contain statistics or abstracts thereof compiled and analysed by the Statistician pursuant to the Census and Statistics Act 1905-1930 shall in all Courts be evidence that those statistics or abstracts were compiled and analysed by the Statistician pursuant to that Act.


(2) In subsection (1), "Statistician" means the Australian Statistician referred to in subsection 5 (2) of the Australian Bureau of Statistics Act 1975 and includes any person to whom the powers of the Statistician under section 12 of the Census and Statistics Act 1905 have been delegated.

EVIDENCE ACT 1905 - PART V
PART V - PROOF OF JUDICIAL PROCEEDINGS

EVIDENCE ACT 1905 - SECT 11
Proof of judicial proceedings

SECT

11. Evidence of any judicial proceeding of the High Court or of any
Federal Court or of any Justice or Judge thereof, including any affidavit pleading or legal document filed or deposited in any such Court, may be given in all Courts by the production of a document purporting to be a copy thereof, and:
(a) proved to be an examined copy thereof; or
(b) purporting to be sealed with the seal of the Court; or
(c) purporting to be certified as a true copy by a registrar or chief officer of the Court.

EVIDENCE ACT 1905 - PART VA
PART VA - EVIDENCE OF CERTAIN NEW ZEALAND MATTERS

EVIDENCE ACT 1905 - DIVISION 1
Division 1 - Preliminary

EVIDENCE ACT 1905 - SECT 11A
Interpretation

SECT

11A. In this Part, unless the contrary intention appears:
"facsimile", in relation to an instrument, document or thing, means a copy of the instrument, document or thing that has been reproduced by facsimile telegraphy;
"New Zealand Act" means an Act of the Parliament of New Zealand;
"New Zealand Minister" means a Minister of the Crown of New Zealand;
"official instrument" includes a proclamation, commission, appointment, warrant, order and regulation;
"public document" includes:
(a) a record required by New Zealand law to be kept of a public document or proceeding; and
(b) an entry in a public register or book; and
(c) a certificate issued by a New Zealand officer under New Zealand law.

EVIDENCE ACT 1905 - SECT 11B
Application of Part

SECT

11B. This Part applies only in relation to proceedings in which a matter for determination arises under:
(a) section 46A, 155A or 155B of the Trade Practices Act 1974; or
(b) a provision of Part VI or XII of the Trade Practices Act 1974 so far as the provision relates to section 46A, 155A or 155B of that Act; or
(c) Part IIIA of the Federal Court of Australia Act 1976.

EVIDENCE ACT 1905 - SECT 11C
Facsimiles

SECT

11C. Subject to any Rules of Court made under the Federal Court of Australia Act 1976, this Part applies to a facsimile of an instrument, document or thing in the same way that it applies to the original of the instrument, document or thing (whether or not that original is itself a copy or extract of an instrument, document or thing).

EVIDENCE ACT 1905 - DIVISION 2
Division 2 - Judicial notice of certain New Zealand matters

EVIDENCE ACT 1905 - SECT 11D
New Zealand Acts

SECT

11D. Judicial notice must be taken of all New Zealand Acts.

EVIDENCE ACT 1905 - SECT 11E
Official New Zealand signatures, seals and stamps

SECT

11E. (1) Judicial notice must be taken of:
(a) the official signature of a person who holds or has held the office of Judge, Master, Registrar or Deputy Registrar of the High Court of New Zealand; and
(b) the official signature of a person who holds or has held an office in New Zealand to which the Governor-General, by Gazette notice, declares this section to apply; and
(c) the imprint of the official seal or stamp of any of those persons; and
(d) the fact that the person holds or has held the office concerned; and
(e) the imprint of a seal of the High Court of New Zealand;
if the signature or imprint purports to be attached or appended to a judicial or other official document.


(2) A declaration may be made under paragraph (1) (b) in relation to an office that has ceased to exist before the declaration is made.


(3) A declaration under paragraph (1) (b) continues to apply to an office or a person who held the office even if the office ceases to exist after the declaration is made.

EVIDENCE ACT 1905 - DIVISION 3
Division 3 - Evidence of certain New Zealand instruments

EVIDENCE ACT 1905 - SECT 11F
Evidence of New Zealand official instruments

SECT

11F. (1) Evidence of an official instrument issued by the Governor-General of New Zealand, or by or under the authority of a New Zealand Minister, may be given by producing:
(a) the New Zealand Gazette purporting to contain the instrument; or
(b) a document purporting:
(i) to be a copy of the instrument; and
(ii) to have been printed under the authority of the New Zealand
Government; or
(c) if the instrument was made by the Governor-General in Council of New Zealand - a copy or extract of the instrument purporting to have been certified as a true copy or extract by the Clerk of the Executive Council of New Zealand; or
(d) a copy or extract of the instrument purporting to have been certified as a true copy or extract by a New Zealand Minister.


(2) Evidence is not required of the handwriting or official position of a person who certifies an instrument under subsection (1).

EVIDENCE ACT 1905 - SECT 11G
Evidence of New Zealand proclamations and other acts of state

SECT

11G. Evidence of a proclamation or other act of state of New Zealand may be given by producing a copy of it:
(a) that is proved to be an examined copy; or
(b) that purports to be sealed with the seal of New Zealand.

EVIDENCE ACT 1905 - SECT 11H
Evidence of public documents admissible in New Zealand under New
Zealand Acts

SECT

11H. (1) If, under a New Zealand Act, a public document is admissible in evidence, to any extent or for any purpose, the document is, without further proof, admissible in evidence to the same extent and for the same purpose if it purports to be sealed, stamped, signed, signed and sealed or signed and stamped in accordance with the New Zealand Act.


(2) If a document is admissible in evidence under subsection (1), a certified copy of it, or a certified extract from it, is also admissible in evidence.

EVIDENCE ACT 1905 - SECT 11J
Evidence of other New Zealand public documents

SECT

11J. If, under New Zealand law, a public document is admissible in evidence, to any extent or for any purpose, without proof of:
(a) the seal, stamp or signature that authenticates it; or
(b) the judicial or official character of the person who appears to have signed it;
the document is admissible in evidence to the same extent and for the same purpose without such proof.

EVIDENCE ACT 1905 - SECT 11K
Evidence of New Zealand documents of a public nature

SECT

11K. If a New Zealand document is of such a public nature as to be admissible in evidence in New Zealand on its mere production from the proper custody, a copy of or extract from it is admissible in evidence if the copy or extract:
(a) is proved to be an examined copy or extract; or
(b) purports to be signed and certified as a true copy or extract by a New Zealand officer who certifies that he or she has custody of it.

EVIDENCE ACT 1905 - DIVISION 4
Division 4 - Evidence of other New Zealand matters

EVIDENCE ACT 1905 - SECT 11L
New Zealand Gazette

SECT

11L. The mere production of a document purporting to be the New Zealand Gazette is evidence:
(a) that it is the New Zealand Gazette; and
(b) that it was published on the day shown on it as the day on which it was published.

EVIDENCE ACT 1905 - SECT 11M
Evidence of printing under authority of New Zealand Government

SECT

11M. The mere production of a document purporting to be printed under the authority of the New Zealand Government is evidence that the document was so printed.

EVIDENCE ACT 1905 - SECT 11N
Acts done by New Zealand Governor-General or Minister

SECT

11N. If, under New Zealand law, the Governor-General of New Zealand or a New Zealand Minister is authorised or required to do an act, production of the New Zealand Gazette purporting to contain a copy or notification of the act is evidence that the act was properly done.

EVIDENCE ACT 1905 - SECT 11P
By-laws and regulations under New Zealand Acts

SECT

11P. If, under a New Zealand Act, power to make by-laws or regulations is conferred on a person or body, a document purporting:
(a) to contain the terms of a by-law or regulation made by the person or body under the Act; and
(b) to be printed under the authority of the New Zealand Government;
is evidence that the by-law or regulation:
(c) was properly made in those terms; and
(d) if it appears to have been approved of or confirmed by the Governor-General of New Zealand - was so approved or confirmed.

EVIDENCE ACT 1905 - DIVISION 5
Division 5 - Evidence relating to New Zealand judicial
proceedings

EVIDENCE ACT 1905 - SECT 11Q
Evidence of act or process of New Zealand court

SECT

11Q. Evidence of a judgment, decree, rule, order or other act or process of a New Zealand court, and of an affidavit, pleading or other legal document lodged with a New Zealand court, may be given by producing a copy of it:
(a) that is proved to be an examined copy; or
(b) that purports to be sealed with the seal of the court.

EVIDENCE ACT 1905 - DIVISION 6
Division 6 - Miscellaneous

EVIDENCE ACT 1905 - SECT 11R
Part not to derogate from existing Australian laws

SECT

11R. This Part is in addition to, and not in derogation of, any other law in force in Australia.

EVIDENCE ACT 1905 - PART VI
PART VI - MlSCELLANEOUS

EVIDENCE ACT 1905 - SECT 12
Affidavit may be sworn before Justice of the Peace

SECT

12. Affidavits for use in the High Court or any Court exercising federal jurisdiction may be sworn before any Justice of the Peace without the issue of any commission for taking affidavits.