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Evidence Act 1995
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Attorney-General's Department
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C2012C00320 C24
27 December 2011
-
30 June 2012
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Table of contents
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Chapter 1—Preliminary
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Part 1.1—Formal matters
1 Short title
2 Commencement
3 Definitions
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Part 1.2—Application of this Act
4 Courts and proceedings to which Act applies
5 Extended application of certain provisions
6 Territories
7 Act binds Crown
8 Operation of other Acts etc.
8A Application of the Criminal Code
9 Effect of Act on other laws
10 Parliamentary privilege preserved
11 General powers of a court
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Chapter 2—Adducing evidence
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Part 2.1—Witnesses
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Division 1—Competence and compellability of witnesses
12 Competence and compellability
13 Competence: lack of capacity
14 Compellability: reduced capacity
15 Compellability: Sovereign and others
16 Competence and compellability: judges and jurors
17 Competence and compellability: defendants in criminal proceedings
18 Compellability of spouses and others in criminal proceedings generally
19 Compellability of spouses and others in certain criminal proceedings
20 Comment on failure to give evidence
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Division 2—Oaths and affirmations
21 Sworn evidence of witnesses to be on oath or affirmation
22 Interpreters to act on oath or affirmation
23 Choice of oath or affirmation
24 Requirements for oaths
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Division 3—General rules about giving evidence
26 Court’s control over questioning of witnesses
27 Parties may question witnesses
28 Order of examination in chief, cross-examination and re-examination
29 Manner and form of questioning witnesses and their responses
30 Interpreters
31 Deaf and mute witnesses
32 Attempts to revive memory in court
33 Evidence given by police officers
34 Attempts to revive memory out of court
35 Effect of calling for production of documents
36 Person may be examined without subpoena or other process
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Division 4—Examination in chief and re-examination
37 Leading questions
38 Unfavourable witnesses
39 Limits on re-examination
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Division 5—Cross-examination
40 Witness called in error
41 Improper questions
42 Leading questions
43 Prior inconsistent statements of witnesses
44 Previous representations of other persons
45 Production of documents
46 Leave to recall witnesses
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Part 2.2—Documents
47 Definitions
48 Proof of contents of documents
49 Documents in foreign countries
50 Proof of voluminous or complex documents
51 Original document rule abolished
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Part 2.3—Other evidence
52 Adducing of other evidence not affected
53 Views
54 Views to be evidence
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Chapter 3—Admissibility of evidence
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Part 3.1—Relevance
55 Relevant evidence
56 Relevant evidence to be admissible
57 Provisional relevance
58 Inferences as to relevance
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Part 3.2—Hearsay
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Division 1—The hearsay rule
59 The hearsay rule—exclusion of hearsay evidence
60 Exception: evidence relevant for a non-hearsay purpose
61 Exceptions to the hearsay rule dependent on competency
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Division 2—“First-hand” hearsay
62 Restriction to “first-hand” hearsay
63 Exception: civil proceedings if maker not available
64 Exception: civil proceedings if maker available
65 Exception: criminal proceedings if maker not available
66 Exception: criminal proceedings if maker available
66A Exception: contemporaneous statements about a person’s health etc.
67 Notice to be given
68 Objections to tender of hearsay evidence in civil proceedings if maker available
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Division 3—Other exceptions to the hearsay rule
69 Exception: business records
70 Exception: contents of tags, labels and writing
71 Exception: electronic communications
72 Exception: Aboriginal and Torres Strait Islander traditional laws and customs
73 Exception: reputation as to relationships and age
74 Exception: reputation of public or general rights
75 Exception: interlocutory proceedings
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Part 3.3—Opinion
76 The opinion rule
77 Exception: evidence relevant otherwise than as opinion evidence
78 Exception: lay opinions
78A Exception: Aboriginal and Torres Strait Islander traditional laws and customs
79 Exception: opinions based on specialised knowledge
80 Ultimate issue and common knowledge rules abolished
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Part 3.4—Admissions
81 Hearsay and opinion rules: exception for admissions and related representations
82 Exclusion of evidence of admissions that is not first-hand
83 Exclusion of evidence of admissions as against third parties
84 Exclusion of admissions influenced by violence and certain other conduct
85 Criminal proceedings: reliability of admissions by defendants
86 Exclusion of records of oral questioning
87 Admissions made with authority
88 Proof of admissions
89 Evidence of silence
90 Discretion to exclude admissions
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Part 3.5—Evidence of judgments and convictions
91 Exclusion of evidence of judgments and convictions
92 Exceptions
93 Savings
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Part 3.6—Tendency and coincidence
94 Application
95 Use of evidence for other purposes
96 Failure to act
97 The tendency rule
98 The coincidence rule
99 Requirements for notices
100 Court may dispense with notice requirements
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
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Part 3.7—Credibility
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Division 1—Credibility evidence
101A Credibility evidence
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Division 2—Credibility of witnesses
102 The credibility rule
103 Exception: cross-examination as to credibility
104 Further protections: cross-examination of accused
106 Exception: rebutting denials by other evidence
108 Exception: re-establishing credibility
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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
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Division 4—Persons with specialised knowledge
108C Exception: evidence of persons with specialised knowledge
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Part 3.8—Character
109 Application
110 Evidence about character of accused persons
111 Evidence about character of co-accused
112 Leave required to cross-examine about character of accused or co-accused
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Part 3.9—Identification evidence
113 Application of Part
114 Exclusion of visual identification evidence
115 Exclusion of evidence of identification by pictures
116 Directions to jury
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Part 3.10—Privileges
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Division 1—Client legal privilege
117 Definitions
118 Legal advice
119 Litigation
120 Unrepresented parties
121 Loss of client legal privilege: generally
122 Loss of client legal privilege: consent and related matters
123 Loss of client legal privilege: defendants
124 Loss of client legal privilege: joint clients
125 Loss of client legal privilege: misconduct
126 Loss of client legal privilege: related communications and documents
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Division 1A—Journalists’ privilege
126G Definitions
126H Protection of journalists’ sources
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Division 2—Other privileges
127 Religious confessions
128 Privilege in respect of self-incrimination in other proceedings
128A Privilege in respect of self-incrimination—exception for certain orders etc
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Division 3—Evidence excluded in the public interest
129 Exclusion of evidence of reasons for judicial etc. decisions
130 Exclusion of evidence of matters of state
131 Exclusion of evidence of settlement negotiations
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Division 4—General
131A Extended application of Division 1A
131B Extended application of Division 1A etc. to all proceedings for Commonwealth offences
132 Court to inform of rights to make applications and objections
133 Court may inspect etc. documents
134 Inadmissibility of evidence that must not be adduced or given
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Part 3.11—Discretionary and mandatory exclusions
135 General discretion to exclude evidence
136 General discretion to limit use of evidence
137 Exclusion of prejudicial evidence in criminal proceedings
138 Discretion to exclude improperly or illegally obtained evidence
139 Cautioning of persons
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Chapter 4—Proof
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Part 4.1—Standard of proof
140 Civil proceedings: standard of proof
141 Criminal proceedings: standard of proof
142 Admissibility of evidence: standard of proof
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Part 4.2—Judicial notice
143 Matters of law
144 Matters of common knowledge
145 Certain Crown certificates
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Part 4.3—Facilitation of proof
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Division 1—General
146 Evidence produced by processes, machines and other devices
147 Documents produced by processes, machines and other devices in the course of business
148 Evidence of certain acts of justices, lawyers and notaries public
149 Attestation of documents
150 Seals and signatures
151 Seals of bodies established under State law
152 Documents produced from proper custody
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Division 2—Matters of official record
153 Gazettes and other official documents
154 Documents published by authority of Parliaments etc.
155 Evidence of official records
155A Evidence of Commonwealth documents
156 Public documents
157 Public documents relating to court processes
158 Evidence of certain public documents
159 Official statistics
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Division 3—Matters relating to post and communications
160 Postal articles
161 Electronic communications
162 Lettergrams and telegrams
163 Proof of letters having been sent by Commonwealth agencies
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Part 4.4—Corroboration
164 Corroboration requirements abolished
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Part 4.5—Warnings and information
165 Unreliable evidence
165A Warnings in relation to children’s evidence
165B Delay in prosecution
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Part 4.6—Ancillary provisions
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Division 1—Requests to produce documents or call witnesses
166 Definition of request
167 Requests may be made about certain matters
168 Time limits for making certain requests
169 Failure or refusal to comply with requests
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Division 2—Proof of certain matters by affidavits or written statements
170 Evidence relating to certain matters
171 Persons who may give such evidence
172 Evidence based on knowledge, belief or information
173 Notification of other parties
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Division 3—Foreign law
174 Evidence of foreign law
175 Evidence of law reports of foreign countries
176 Questions of foreign law to be decided by judge
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Division 4—Procedures for proving other matters
177 Certificates of expert evidence
178 Convictions, acquittals and other judicial proceedings
179 Proof of identity of convicted persons—affidavits by members of State or Territory police forces
180 Proof of identity of convicted persons—affidavits by AFP employees or special members of the Australian Federal Police
181 Proof of service of statutory notifications, notices, orders and directions
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Chapter 5—Miscellaneous
182 Application of certain sections in relation to Commonwealth records, postal articles sent by Commonwealth agencies and certain Commonwealth documents
183 Inferences
184 Accused may admit matters and give consents
185 Faith and credit to be given to documents properly authenticated
186 Swearing of affidavits before justices of the peace, notaries public and lawyers
187 Abolition of the privilege against self-incrimination for bodies corporate
188 Impounding documents
189 The voir dire
190 Waiver of rules of evidence
191 Agreements as to facts
192 Leave, permission or direction may be given on terms
192A Advance rulings and findings
193 Additional powers
194 Witnesses failing to attend proceedings
195 Prohibited question not to be published
196 Proceedings for offences
197 Regulations
Schedule—Oaths and Affirmations
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Dictionary
Part 1—Definitions
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Part 2—Other expressions
1 References to businesses
2 References to examination in chief, cross-examination and re-examination
3 References to civil penalties
4 Unavailability of persons
5 Unavailability of documents and things
6 Representations in documents
7 Witnesses
8 References to documents
8A References to offices etc.
9 References to laws
10 References to children and parents
11 References to de facto partners
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Endnotes
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
