Minister: Minister for Health and Minister for Ambulance Services
Agency: Queensland Health


Evidence Act 1977


Queensland Crest
Evidence Act 1977
Queensland Evidence Act 1977 Current as at [Not applicable] Indicative reprint note This is an unofficial version of a reprint of this Act that incorporates all proposed amendments to the Act included in the Termination of Pregnancy Bill 2018. This indicative reprint has been prepared for information only— it is not an authorised reprint of the Act . The point-in-time date for this indicative reprint is the introduction date for the Termination of Pregnancy Bill 2018—22 August 2018. Detailed information about indicative reprints is available on the Information page of the Queensland legislation website.
© State of Queensland 2018 This work is licensed under a Creative Commons Attribution 4.0 International License.
Not authorised —indicative only Queensland Evidence Act 1977 Contents Part 1 1 2 2A 3 4 5 Part 2 Division 1 6 7 8 Division 1A 9 9A 9B 9C 9D Division 1B 9E Division 2 10 12 13 14 Division 2A Subdivision 1 Page Preliminary Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Act binds Crown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 13 Notes in text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 13 Meaning of copy of document etc. . . . . . . . . . . . . . . . . . . . . . . . Meaning of document purporting to be of certain character etc. . 13 14 Witnesses Who may testify Witnesses interested or convicted of offence . . . . . . . . . . . . . . . 15 Parties, their wives and husbands as witnesses . . . . . . . . . . . . . Witnesses in a criminal proceeding . . . . . . . . . . . . . . . . . . . . . . . 15 15 Competency of witnesses and capacity to be sworn Presumption as to competency . . . . . . . . . . . . . . . . . . . . . . . . . . Competency to give evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 16 Competency to give sworn evidence . . . . . . . . . . . . . . . . . . . . . . Expert evidence about witness’s ability to give evidence . . . . . . 16 17 Evidence admitted under s 9A . . . . . . . . . . . . . . . . . . . . . . . . . . Special provisions for child witnesses 18 Principles for dealing with a child witness . . . . . . . . . . . . . . . . . . Privileges and obligations of witnesses 18 Privilege against self-incrimination . . . . . . . . . . . . . . . . . . . . . . . 19 Admissibility of evidence as to access by husband or wife . . . . . 19 Compellability of parties and witnesses as to evidence of adultery 19 Abolition of certain privileges . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sexual assault counselling privilege 20 Preliminary
Not authorised —indicative only Evidence Act 1977 Contents 14A 14B Subdivision 2 14C 14D Subdivision 3 14E 14F 14G 14H Subdivision 4 14I 14J Subdivision 5 14K 14L 14M 14N 14O 14P Division 3 15 15A 16 17 18 19 20 21 Division 4 21A 21AAA Division 4A Subdivision 1 Meaning of protected counselling communication . . . . . . . . . . . 20 Other definitions for division . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Committal and bail proceedings Application of subdivision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Sexual assault counselling privilege . . . . . . . . . . . . . . . . . . . . . . 24 Other proceedings Application of subdivision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Sexual assault counselling privilege . . . . . . . . . . . . . . . . . . . . . . 24 Application for leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Deciding whether to grant leave . . . . . . . . . . . . . . . . . . . . . . . . . 26 Waiver or loss of privilege Waiver of privilege by counselled person . . . . . . . . . . . . . . . . . . 28 Loss of privilege if communication made in commission of offence 29 General provisions Court to inform of rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Standing of counsellor and counselled person . . . . . . . . . . . . . . 30 Deciding whether document or evidence is protected counselling communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Ancillary orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Application of division despite Justices Act 1886 . . . . . . . . . . . . 31 Application of privilege in civil proceedings . . . . . . . . . . . . . . . . . 31 Examination and cross-examination of witnesses Questioning a person charged in a criminal proceeding . . . . . . . 32 Questioning of witness as to certain convictions . . . . . . . . . . . . . 33 Witness may be questioned as to previous conviction . . . . . . . . 33 How far a party may discredit the party’s own witness . . . . . . . . 33 Proof of previous inconsistent statement of witness . . . . . . . . . . 34 Witness may be cross-examined as to written statement without being shown it . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Cross-examination as to credit . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Improper questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Evidence of special witnesses Evidence of special witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Exclusion of particular persons while videorecording or usable soundtrack being presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Evidence of affected children Preliminary Page 2
Not authorised —indicative only Evidence Act 1977 Contents 21AA 21AB 21AC 21AD Subdivision 2 21AE 21AF 21AG 21AH Subdivision 3 21AI 21AJ 21AK 21AL 21AM 21AN 21AO Subdivision 4 21AP 21AQ 21AR Subdivision 5 21AS 21AT 21AU 21AV 21AW 21AX Division 4AA 21AXA 21AXB 21AXC 21AXD Division 4B Subdivision 1 Purposes of div 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 How purposes are to be achieved . . . . . . . . . . . . . . . . . . . . . . . . 42 Definitions for div 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Meaning of child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Committal proceeding Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Evidence-in-chief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Cross-examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Limitation on cross-examination . . . . . . . . . . . . . . . . . . . . . . . . . 50 Prerecording of affected child’s evidence Application of sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Presentation of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Videorecording of affected child’s evidence . . . . . . . . . . . . . . . . 51 Court to give directions for taking an affected child’s evidence . . 53 Use of prerecorded evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Giving of further evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Court order that evidence not to be taken and recorded under this sdiv 56 Taking of affected child’s evidence using audio visual link or screen Application of sdiv 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Audio visual links or screening arrangements must be used . . . 57 Court may order that s 21AQ does not apply . . . . . . . . . . . . . . . 58 General Prosecutor or applicant to advise that an affected child is to give evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Identification of persons or things by affected child . . . . . . . . . . . 59 Exclusion of public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Affected child entitled to support . . . . . . . . . . . . . . . . . . . . . . . . . 61 Instructions to be given to jury . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Orders, directions and rulings concerning affected child witnesses 62 Use of soundtracks from particular videorecordings Definition for division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Meaning of usable soundtrack . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Court may make order for presentation of usable soundtrack . . 63 Use of usable soundtrack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Dealings with, and destruction of, recordings Preliminary Page 3
Not authorised —indicative only Evidence Act 1977 Contents 21AY Subdivision 2 21AZ 21AZA 21AZB 21AZC Subdivision 3 21AZD 21AZE 21AZF 21AZG 21AZH Division 5 Subdivision 1 21B 21C 21D Subdivision 2 21E 21F 21G 21H 21I 21J 21K 21KA 21KB 21KC 21KD 21KE 21KF 21KG 21KH Subdivision 3 21KI Definitions for div 4B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Dealings with recordings Approval to edit or otherwise change a recording . . . . . . . . . . . . 66 Court to give directions about the use or safekeeping of a recording 66 Unauthorised possession of, or dealing with, recording . . . . . . . 67 Publishing a recording prohibited . . . . . . . . . . . . . . . . . . . . . . . . 68 Destruction of recordings Relationship with other Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Making of practice directions authorising destruction . . . . . . . . . 68 Court may make order about destruction . . . . . . . . . . . . . . . . . . 69 Destruction of particular digital recordings . . . . . . . . . . . . . . . . . 69 Delegation by principal registrar . . . . . . . . . . . . . . . . . . . . . . . . . 70 Witness identity protection Preliminary Purposes of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Application of div 5 to lawyer of party to a proceeding . . . . . . . . 72 Witness identity protection certificates for operatives Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Giving witness identity protection certificate . . . . . . . . . . . . . . . . 73 Form of witness identity protection certificate . . . . . . . . . . . . . . . 74 Filing and notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Effect of witness identity protection certificate . . . . . . . . . . . . . . . 77 Orders to protect operative’s identity etc. . . . . . . . . . . . . . . . . . . 79 Disclosure of operative’s identity etc. despite certificate . . . . . . . 79 Directions to jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Witness identity protection certificate—cancellation . . . . . . . . . . 82 Permission to give information disclosing operative’s identity etc. 82 Disclosure offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Review of giving of witness identity protection certificate by police service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Giving information about witness identity protection certificates . 85 Report about witness identity protection certificates . . . . . . . . . . 86 Recognition of witness identity protection certificates under corresponding laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 General Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Page 4
Division 6 21L 21M 21N 21O 21P 21Q 21R 21S Part 3 Division 1 22 23 24 Division 2 25 26 27 28 29 30 31 32 33 Division 3 35 35A 36 37 38 39 Part 3A Evidence Act 1977 Contents Cross-examination of protected witnesses Application of division 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Meaning of protected witness . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 No cross-examination of protected witness by person charged . 89 Procedure for cross-examination of protected witness if person charged has no legal representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Legal assistance for cross-examination of protected witness . . . 90 Satisfaction of Criminal Code, section 616 . . . . . . . . . . . . . . . . . 90 Jury direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Orders, directions and rulings concerning protected witnesses . 91 Means of obtaining evidence Commissions, requests and orders to examine witnesses Commission, request or order to examine witnesses . . . . . . . . . 91 Commission or order in criminal cases . . . . . . . . . . . . . . . . . . . . 92 Power of person appointed by foreign authority to take evidence and administer oaths . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Summary procedure to obtain evidence for Queensland or other jurisdictions Definitions for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Power of Queensland court to request corresponding court in a prescribed country to take evidence for use in Queensland court 94 Power to take evidence on request from corresponding court of a prescribed country . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Summons of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Depositions to be signed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Power of Queensland court to transmit requests to other places 97 Saving as to personal attendance . . . . . . . . . . . . . . . . . . . . . . . . 98 General procedure to obtain evidence for other jurisdictions Definitions for div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Application of division to Crown . . . . . . . . . . . . . . . . . . . . . . . . . 98 Application to Supreme Court to obtain evidence for civil proceedings in another jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Power of Supreme Court to give effect to application to obtain evidence 99 Privilege of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Judicial proceedings for the purposes of the Criminal Code . . . . 101 Audio visual links and audio links Page 5 Not authorised —indicative only
Evidence Act 1977 Contents Not authorised —indicative only Division 1 39A 39B 39C Division 2 39D 39E 39F Division 3 39G 39H 39I 39J 39K 39L 39M 39N 39O 39P Division 3A 39PA 39PB 39PC Division 4 39Q 39R 39S 39T 39U 39V 39W Page 6 Preliminary Purposes of pt 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Application of pt 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Definitions for pt 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Use of interstate audio visual links or audio links in proceedings before Queensland courts Application of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 State courts may take evidence and submissions from outside State 104 Legal practitioners entitled to practise . . . . . . . . . . . . . . . . . . . . . 105 Use of interstate audio visual links or audio links in proceedings in participating States Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Recognised courts may take evidence or receive submissions from persons in Queensland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Powers of recognised courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Orders made by recognised court . . . . . . . . . . . . . . . . . . . . . . . . 106 Enforcement of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Privileges, protection and immunity of participants in proceedings before recognised court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Recognised court may administer oath in the State . . . . . . . . . . 107 Assistance to recognised court . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Contempt of recognised court . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Double jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Use of audio visual links or audio links for expert witnesses Application of div 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Expert witnesses to give evidence by audio visual link or audio link 109 Direction to jury if expert witness gives evidence by audio visual link or audio link . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 General provisions about the use of audio visual links or audio links Application of div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Queensland courts may take evidence and submissions from external location . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Failure of the link . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 External location to be considered part of Queensland court location 112 Witness outside Queensland—when compellable . . . . . . . . . . . 112 Administration of oaths and affirmations . . . . . . . . . . . . . . . . . . . 113
39X 39Y 39Z Part 4 41 42 42A 43 43A Part 5 Division 1 44 45 46 46A 46B 47 48 49 50 51 52 53 54 55 55A 56 57 58 58A Division 2 59 60 61 62 63 Evidence Act 1977 Contents Testimony from outside Australia other than on oath . . . . . . . . . 113 Putting documents to a person at an external location . . . . . . . . 113 Extension of rule-making power . . . . . . . . . . . . . . . . . . . . . . . . . 114 Judicial notice of seals, signatures and legislative enactments Public Seal of the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Signatures of holders of public offices etc. to be judicially noticed 114 Certain seals to be judicially noticed etc. . . . . . . . . . . . . . . . . . . 115 Acts and statutory instruments to be judicially noticed . . . . . . . . 115 Administrative arrangements to be judicially noticed . . . . . . . . . 116 Proof of documents and other matters Proof of official and judicial documents and matters Proof by purported certificate, document etc. . . . . . . . . . . . . . . . 116 Proof of gazette . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Proof regarding government printer, parliamentary counsel and Legislative Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Presumption of accuracy of official copy of Queensland legislation 117 Court or tribunal may inform itself about Act or statutory instrument 119 Proof of Legislative Assembly’s proceedings or legislative material 119 Proof of particular instruments . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Proof of standard rules, codes and specifications . . . . . . . . . . . . 121 Proof of act done by Governor or Minister . . . . . . . . . . . . . . . . . 122 Proof of public documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Proof of registers of British vessels etc. . . . . . . . . . . . . . . . . . . . 122 Proof of judicial proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Proof of identity of a person convicted . . . . . . . . . . . . . . . . . . . . 124 Proof of incorporation or registration of company in Queensland 127 Proof of disaster situation under Disaster Management Act 2003 129 Proof of unallocated State land grants . . . . . . . . . . . . . . . . . . . . 129 Proof of lease or licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 Proof of letters patent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 Proof of document under Royal Sign Manual . . . . . . . . . . . . . . . 131 Proof of certain miscellaneous documents and matters Comparison of disputed writing . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Proof of instrument to validity of which attestation is not necessary 132 Proof of instrument to validity of which attestation is necessary . 132 Presumption as to documents 20 years old . . . . . . . . . . . . . . . . 132 Wills, deeds etc. may be verified by declaration . . . . . . . . . . . . . 132 Page 7 Not authorised —indicative only
Not authorised —indicative only Evidence Act 1977 Contents 64 65 66 Division 3 67 68 69 70 71 72 73 74 Division 4 75 76 77 Division 5 78 79 80 81 82 Division 6 83 84 85 86 87 88 89 90 91 Part 6 92 93 Evidentiary effect of probate etc. . . . . . . . . . . . . . . . . . . . . . . . . . 133 Maps, charts etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Astronomical phenomena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Proof of certain Australian and overseas documents and matters Definitions for div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Proof of certain Australian and overseas written laws etc. . . . . . 135 Proof of judicial proceedings of an overseas country . . . . . . . . . 135 Proof of certain documents admissible elsewhere in Australia . . 136 Royal proclamations, orders of the Privy Council etc. . . . . . . . . . 136 Proof of certain Australian and overseas public documents . . . . 137 Proof of incorporation or registration of certain Australian and overseas companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Proof of birth, adoption, death or marriage . . . . . . . . . . . . . . . . . 138 Proof of telegraphic messages Notice of intention to adduce telegraphic message in evidence . 138 Proof of message . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Proof of sending a message . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Admissibility of convictions in civil proceedings Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Convictions as evidence in civil proceedings . . . . . . . . . . . . . . . 140 Convictions as evidence in actions for defamation . . . . . . . . . . . 140 Evidence identifying the particulars of a conviction . . . . . . . . . . . 140 Operation of other laws not affected . . . . . . . . . . . . . . . . . . . . . . 141 Books of account Definitions for div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Entries in book of account to be evidence . . . . . . . . . . . . . . . . . . 142 Proof that book is a book of account . . . . . . . . . . . . . . . . . . . . . . 142 Verification of copy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Matters which may be proved under this division ordinarily to be so proved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 Court may order books of account or copies to be made available 143 Proof that a person has no account . . . . . . . . . . . . . . . . . . . . . . 144 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 Application of ss 84–86 and 89 . . . . . . . . . . . . . . . . . . . . . . . . . . 144 Admissibility of statements and representations Admissibility of documentary evidence as to facts in issue . . . . . 145 Admissibility of documentary evidence as to facts in issue in criminal Page 8
93A 93AA 93B 93C 94 95 95A 96 97 98 99 100 101 102 103 Part 7 Division 1 104 Division 2 105 Division 3 106 107 108 109 110 111 112 113 Evidence Act 1977 Contents proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Statement made before proceeding by child or person with an impairment of the mind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Unauthorised possession of, or dealing in, s 93A criminal statements 149 Admissibility of representation in prescribed criminal proceedings if person who made it is unavailable . . . . . . . . . . . . . . . . . . . . . . . 153 Warning and information for jury about hearsay evidence . . . . . 154 Admissibility of evidence concerning credibility of persons responsible for statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Admissibility of statements in documents or things produced by processes or devices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 DNA evidentiary certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Inferences concerning admissibility . . . . . . . . . . . . . . . . . . . . . . . 160 Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Rejection of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Withholding statement from jury room . . . . . . . . . . . . . . . . . . . . . 161 Corroboration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 Witness’s previous statement, if proved, to be evidence of facts stated 161 Weight to be attached to evidence . . . . . . . . . . . . . . . . . . . . . . . 162 Provisions of part are alternative . . . . . . . . . . . . . . . . . . . . . . . . . 162 Reproductions of documents Preliminary Definitions for part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Reproduction of official documents Certified reproductions of certain official documents etc. to be admissible without further proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 Reproduction of business documents Admissibility of reproductions of business documents destroyed, lost or unavailable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Use of photographing machines . . . . . . . . . . . . . . . . . . . . . . . . . 167 Affidavit of maker of print from transparency to be evidence . . . 169 Proof where document processed by independent processor . . 169 Reproduction not to be admitted as evidence unless transparency in existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 Transparency etc. may be preserved in lieu of document . . . . . . 171 Proof of destruction of documents etc. . . . . . . . . . . . . . . . . . . . . 171 One affidavit sufficient in certain circumstances . . . . . . . . . . . . . 172 Page 9 Not authorised —indicative only
Not authorised —indicative only Evidence Act 1977 Contents 114 115 Division 4 116 117 118 119 120 121 122 123 124 125 126 128 129 Part 8 129A 129B 130 131 131A 132 132A 132B 132C 133 133A 134 134A 134B 135 Part 9 Division 1 Certification required when affidavit etc. not contained in length or series of film . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Discovery, inspection and production where document destroyed or lost 173 General Copies to be evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Further reproduction may be ordered by court . . . . . . . . . . . . . . 176 Colours and tones of reproductions . . . . . . . . . . . . . . . . . . . . . . 177 Notice to produce not required . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Proof of comparisons not required . . . . . . . . . . . . . . . . . . . . . . . 178 Presumptions as to ancient documents . . . . . . . . . . . . . . . . . . . 178 Reproductions made in other States . . . . . . . . . . . . . . . . . . . . . . 178 Judicial notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 A court may reject reproduction . . . . . . . . . . . . . . . . . . . . . . . . . 179 Weight of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Provisions of part are alternative . . . . . . . . . . . . . . . . . . . . . . . . . 179 Regulation may exclude application of provisions . . . . . . . . . . . . 180 Public Records Act 2002 not affected . . . . . . . . . . . . . . . . . . . . . 180 Miscellaneous Order that evidence may be given in a different way . . . . . . . . . 180 Person may be examined without subpoena or other process . . 181 Rejection of evidence in criminal proceedings . . . . . . . . . . . . . . 181 Witnesses for defence to be sworn . . . . . . . . . . . . . . . . . . . . . . . 181 Court may order interpreter to be provided . . . . . . . . . . . . . . . . . 181 Actions for breach of promise of marriage . . . . . . . . . . . . . . . . . 182 Admissibility of similar fact evidence . . . . . . . . . . . . . . . . . . . . . . 182 Evidence of domestic violence . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Fact finding on sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Impounding documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 DNA analysts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Power to appoint a government printer . . . . . . . . . . . . . . . . . . . . 184 Production of documents by agencies in relation to civil proceedings 184 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Transitional and declaratory provisions Evidence Amendment Act 2000 Page 10
Not authorised —indicative only 136 Division 1A 136A Division 2 137 138 139 140 141 142 Division 3 143 Division 4 144 145 Division 5 146 Division 6 147 Division 7 148 Division 8 149 150 151 152 Division 9 153 Schedule 1 Schedule 3 Evidence Act 1977 Contents Transitional—Evidence Amendment Act 2000 . . . . . . . . . . . . . . 187 Justice and Other Legislation Amendment Act 2003 Declaratory provision for Justice and Other Legislation Amendment Act 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 Evidence (Protection of Children) Amendment Act 2003 Definitions for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 Communications between a husband and wife . . . . . . . . . . . . . . 189 Evidence admitted under repealed s 9 . . . . . . . . . . . . . . . . . . . . 189 Committal proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Prerecording of evidence for a summary trial . . . . . . . . . . . . . . . 189 Prerecording of evidence for a trial on indictment . . . . . . . . . . . . 189 Cross-Border Law Enforcement Legislation Amendment Act 2005 Witness anonymity certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Justice and Other Legislation Amendment Act 2005 Statement made before proceeding by child or person with an impairment of the mind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Definition chief executive (surveys) . . . . . . . . . . . . . . . . . . . . . . . 191 Criminal Code and Other Acts Amendment Act 2008 References to particular Criminal Code offences . . . . . . . . . . . . 191 Health and Other Legislation Amendment Act 2016 Prescribed special offence taken to include references to Criminal Code, ss 208 and 209 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Serious and Organised Crime Legislation Amendment Act 2016 Special witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Criminal Law Amendment Act 2017 Definition for division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Admissibility of particular copies of videorecordings made before commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Destruction of recordings made before commencement . . . . . . . 193 Application of DNA evidentiary certificate provision to proceedings started before commencement . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Victims of Crime Assistance and Other Legislation Amendment Act 2017 Sexual assault counselling privilege . . . . . . . . . . . . . . . . . . . . . . 193 Examples of offices of a public nature established under an Act 195 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 Page 11
Not authorised— indicative only
Evidence Act 1977 Evidence Act 1977 Part 1 Preliminary [s 1] An Act to consolidate, amend and reform the law of evidence and for related purposes Not authorised —indicative only Part 1 Preliminary 1 Short title This Act may be cited as the Evidence Act 1977 . 2 Act binds Crown This Act binds the Crown not only in right of the State of Queensland but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. 2A Notes in text A note in the text of this Act is part of the Act. 3 Definitions The dictionary in schedule 3 defines particular words used in this Act. 4 Meaning of copy of document etc. In this Act, any reference to a copy of a document includes— (a) in the case of a document falling within paragraph (e) but not paragraph (f) of the definition document in Current as at [Not applicable] Page 13
Not authorised —indicative only Evidence Act 1977 Part 1 Preliminary [s 5] schedule 3—a transcript of the sounds or other data embodied therein; and (b) in the case of a document falling within paragraph (f) but not paragraph (e) of that definition—a reproduction or still reproduction of the image or images embodied therein, whether enlarged or not; and (c) in the case of a document falling within both those paragraphs—such a transcript together with such a reproduction or still reproduction; and (d) in the case of a document not falling within the said paragraph (f) of which a visual image is embodied in a document falling within that paragraph—a reproduction or still reproduction of that image, whether enlarged or not; and any reference to a copy of the material part of a document shall be construed accordingly. 5 Meaning of document purporting to be of certain character etc. For the purposes of this Act a document, including any instrument or part of an instrument, purports— (a) to be of a certain character; or (b) to have been produced or authenticated at a certain time, in a certain manner, by a certain person or body, or by a person having a certain qualification or occupying a certain office; or (c) any other matter whatever; if the document expressly or impliedly represents that matter or a court can assume that matter from the contents of the document or otherwise. Page 14 Current as at [Not applicable]
Part 2 Witnesses Evidence Act 1977 Part 2 Witnesses [s 6] Not authorised —indicative only Division 1 Who may testify 6 Witnesses interested or convicted of offence No person shall be excluded from giving evidence in any proceeding on the ground— (a) that the person has or may have an interest in the matter in question, or in the result of the proceeding; or (b) that the person has previously been convicted of any offence. 7 Parties, their wives and husbands as witnesses (1) Each of the parties to a proceeding (not being a criminal proceeding) and a person on whose behalf such a proceeding is brought or defended is competent and compellable to give evidence on behalf of either or any of the parties to the proceeding. (2) The husband or wife of a party to a proceeding (not being a criminal proceeding) and the husband or wife of a person on whose behalf such a proceeding is brought or defended is competent and compellable to give evidence on behalf of either or any of the parties to the proceeding. (3) To remove any doubt, it is declared for subsections (1) and (2) that a party to a proceeding includes a person who is the subject of an inquiry, reference or examination. 8 Witnesses in a criminal proceeding (1) In a criminal proceeding, each person charged is competent to give evidence on behalf of the defence (whether that person is charged solely or jointly with any other person) but is not compellable to do so. Current as at [Not applicable] Page 15
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 9] (2) The husband or wife of an accused person in a criminal proceeding is competent and compellable to give evidence in the proceeding in any court, either for the prosecution or for the defence, and without the consent of the accused. (3) In a criminal proceeding, a husband or wife is competent and compellable to disclose communications made between the husband and the wife during the marriage. Division 1A Competency of witnesses and capacity to be sworn 9 Presumption as to competency (1) Every person, including a child, is presumed to be— (a) competent to give evidence in a proceeding; and (b) competent to give evidence in a proceeding on oath. (2) Subsection (1) is subject to this division. 9A Competency to give evidence (1) This section applies if, in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness in the proceeding to give evidence. (2) The person is competent to give evidence in the proceeding if, in the court’s opinion, the person is able to give an intelligible account of events which he or she has observed or experienced. (3) Subsection (2) applies even though the evidence is not given on oath. 9B Competency to give sworn evidence (1) This section applies if, in a particular case, an issue is raised, by a party to the proceeding or the court, about the Page 16 Current as at [Not applicable]
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 9C] competency of a person called as a witness in the proceeding to give evidence on oath. (2) The person is competent to give evidence in the proceeding on oath if, in the court’s opinion, the person understands that— (a) the giving of evidence is a serious matter; and (b) in giving evidence, he or she has an obligation to tell the truth that is over and above the ordinary duty to tell the truth. (3) If the person is competent to give evidence in the proceeding but is not competent to give the evidence on oath, the court must explain to the person the duty of speaking the truth. Note— The Oaths Act 1867 , section 17, makes provision for a person called as a witness to make his or her solemn affirmation instead of being sworn. 9C Expert evidence about witness’s ability to give evidence (1) This section applies to a proceeding if— (a) under section 9A, the court is deciding whether a person is able to give an intelligible account of events which he or she has observed or experienced; or (b) under section 9B, the court is deciding whether a person understands the matters mentioned in section 9B(2)(a) and (b); or (c) the evidence of a child under 12 years is admitted. (2) Expert evidence is admissible in the proceeding about the person’s or child’s level of intelligence, including the person’s or child’s powers of perception, memory and expression, or another matter relevant to the person’s or child’s competence to give evidence, competence to give evidence on oath, or ability to give reliable evidence. Current as at [Not applicable] Page 17
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 9D] 9D Evidence admitted under s 9A (1) Evidence admitted under section 9A that is written down as a deposition is taken to be a deposition for all purposes. (2) If evidence is admitted under section 9A— (a) the probative value of the evidence is not decreased only because the evidence is not given on oath; and (b) a person charged with an offence may be convicted on the evidence; and (c) the person giving the evidence is liable to be convicted of perjury to the same extent as if the person had given the evidence on oath. Division 1B Special provisions for child witnesses 9E Principles for dealing with a child witness (1) Because a child tends to be vulnerable in dealings with a person in authority, it is the Parliament’s intention that a child who is a witness in a proceeding should be given the benefit of special measures when giving the child’s evidence. (2) The following general principles apply when dealing with a child witness in a proceeding— (a) the child is to be treated with dignity, respect and compassion; (b) measures should be taken to limit, to the greatest practical extent, the distress or trauma suffered by the child when giving evidence; (c) the child should not be intimidated in cross-examination; (d) the proceeding should be resolved as quickly as possible. (3) In this section— Page 18 Current as at [Not applicable]
child means a child under 16 years. Evidence Act 1977 Part 2 Witnesses [s 10] Not authorised —indicative only Division 2 Privileges and obligations of witnesses 10 Privilege against self-incrimination (1) Nothing in this Act shall render any person compellable to answer any question tending to criminate the person. (2) However, in a criminal proceeding where a person charged gives evidence, the person’s liability to answer any such question shall be governed by section 15. 12 Admissibility of evidence as to access by husband or wife Notwithstanding anything contained in any Act or any rule of law, neither the evidence of any person nor any statement made out of court by any person shall be inadmissible in any proceeding whatever by reason of the fact that it is tendered with the object of proving, or that it proves or tends to prove, that marital intercourse did or did not take place at any time or during any period between that person and a person who is or was the person’s wife or husband or that any child is or was, or is not or was not, their legitimate child. 13 Compellability of parties and witnesses as to evidence of adultery Notwithstanding anything in any Act or any rule of law, in any proceeding whatever— (a) a party shall not be entitled to refuse to answer any interrogatory or to give discovery of documents; (b) a witness, whether a party or not, shall not be entitled to refuse to answer any question, whether relevant to any issue or relating to credit merely; Current as at [Not applicable] Page 19
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 14] on the ground solely that such answer or discovery would or might relate to, or would tend or might tend to establish, adultery by that party or that witness, or by any other person with that party or that witness, as the case may be. 14 Abolition of certain privileges (1) The following rules of law are hereby abrogated except in relation to criminal proceedings, that is to say— (a) the rule whereby, in any proceeding, a person can not be compelled to answer any question or produce any document or thing if to do so would tend to expose the person to a forfeiture; (b) the rule whereby, in any proceeding, a person other than a party to the proceeding can not be compelled to produce any deed or other document relating to the person’s title to any land. (2) The rule of law whereby, in any civil proceeding, a party to the proceeding can not be compelled to produce any document relating solely to the party’s own case and in no way tending to impeach that case or support the case of any opposing party is hereby abrogated. Division 2A Sexual assault counselling privilege Subdivision 1 Preliminary 14A Meaning of protected counselling communication (1) A protected counselling communication is an oral or written communication made in confidence— (a) by a counselled person to a counsellor; or (b) by a counsellor to or about a counselled person to further the counselling process; or Page 20 Current as at [Not applicable]
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 14B] (c) about a counselled person by a parent, carer or other support person who is present to facilitate communication between the counselled person and a counsellor or to otherwise further the counselling process. (2) However, a communication made to or by a health practitioner about a physical examination of the counselled person conducted in the course of an investigation into an alleged sexual assault offence is not a protected counselling communication . (3) For subsection (1) it does not matter whether the communication was made— (a) before or after the act or omission constituting the sexual assault offence committed or allegedly committed against the counselled person occurred; or (b) in connection with the sexual assault offence, or a condition arising from the sexual assault offence, committed or allegedly committed against the counselled person. (4) A reference in this division to a protected counselling communication includes a reference to— (a) a document to the extent it contains a protected counselling communication; or (b) evidence to the extent it discloses a protected counselling communication. (5) In this section— health practitioner means a person registered under the Health Practitioner Regulation National Law to practise a health profession. 14B Other definitions for division In this division— counsel a person means— Current as at [Not applicable] Page 21
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 14B] (a) to listen to and give verbal or other support, help or encouragement to the person, whether one-on-one or in a group; or (b) to advise, give therapy to or treat the person, whether one-on-one or in a group. counselled person means a person who— (a) is being, or has at any time been, counselled by a counsellor; and (b) is, or has at any time been, a victim or alleged victim of a sexual assault offence. counsellor means a person who— (a) has undertaken training or study, or has experience, that is relevant to the process of counselling other persons; and (b) in the course of the person’s paid or voluntary employment, other than as a religious representative, counsels another person. essential person , for a proceeding, means any of the following persons— (a) a Crown law officer or a person authorised by a Crown law officer; (b) the prosecutor; (c) a witness giving evidence; (d) a person who a witness is entitled to have present in court under section 21A(2)(d) or 21AV or the Criminal Law (Sexual Offences) Act 1978 , section 5(1)(f); (e) a person whose presence is, in the court’s opinion, necessary or desirable for the proper conduct of the proceeding; (f) a person who applies to the court to be present and whose presence, in the court’s opinion— (i) would serve a proper interest of the person; and Page 22 Current as at [Not applicable]
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 14C] (ii) would not be prejudicial to a counselled person’s interests. religious representative means a person who— (a) is a member of— (i) an organised religion; or (ii) a religious group, even if the group is not part of, or does not consider itself to be part of, an organised religion; and (b) holds a position in the religion or group that allows the person to hold himself or herself out as a representative of the religion or group. sexual assault offence means— (a) an offence of a sexual nature, including, for example— (i) an offence against a provision of the Criminal Code, chapter 32; and (ii) an offence against a provision of the Criminal Code, chapter 22; or (b) an act or omission that would constitute an offence mentioned in paragraph (a) if the act or omission had occurred— (i) in Queensland; or (ii) after the offence provision commenced; or (c) an alleged offence mentioned in paragraph (a). Subdivision 2 Committal and bail proceedings 14C Application of subdivision This subdivision applies to— (a) a committal proceeding; or Current as at [Not applicable] Page 23
Evidence Act 1977 Part 2 Witnesses [s 14D] (b) a proceeding under the Bail Act 1980 relating to bail for an offence, including a proceeding relating to the remand of a person in custody. Not authorised —indicative only 14D Sexual assault counselling privilege A person can not do any of the following things in connection with the proceeding— (a) compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court; (b) produce to a court, adduce evidence of or otherwise use, a protected counselling communication; (c) otherwise disclose, inspect or copy a protected counselling communication. Subdivision 3 Other proceedings 14E Application of subdivision This subdivision applies to a proceeding— (a) for the trial or sentencing of a person for an offence, other than a proceeding to which subdivision 2 applies; or (b) relating to a domestic violence order under the Domestic and Family Violence Protection Act 2012 . 14F Sexual assault counselling privilege A person can not do any of the following things in connection with the proceeding, other than with the leave of the court hearing the proceeding— (a) compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court; Page 24 Current as at [Not applicable]
Evidence Act 1977 Part 2 Witnesses [s 14G] (b) produce to a court, adduce evidence of or otherwise use, a protected counselling communication; (c) otherwise disclose, inspect or copy a protected counselling communication. Not authorised —indicative only 14G Application for leave (1) A party to the proceeding may apply for leave of the court under this subdivision. (2) As soon as reasonably practicable after the application is made, the applicant must give the following persons a notice complying with subsection (3)— (a) each other party to the proceeding; (b) if the counsellor to whom the protected counselling communication relates is not a party to the proceeding—the counsellor. (3) For subsection (2), the notice is a written notice stating— (a) an application for leave under this subdivision has been made in relation to a protected counselling communication; and (b) a description of the nature and particulars of the protected counselling communication (other than particulars disclosing the content of the communication); and (c) if the counsellor or counselled person to whom the communication relates is not a party to the proceeding—that the counsellor or counselled person may appear in the proceeding under section 14L. (4) If the counselled person to whom the protected counselling communication relates is not a party to the proceeding, the prosecutor must, as soon as practicable after a notice is given under subsection (2), give the counselled person a copy of the notice. (5) The court can not decide the application until at least 14 days after subsection (2) is complied with. Current as at [Not applicable] Page 25
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 14H] (6) However, the court may waive the requirement to comply with subsection (2) if, in relation to the proceeding— (a) notice has been given of a previous application for leave under this subdivision relating to the same protected counselling communication; or (b) the counselled person to whom the protected counselling communication relates has consented to the waiver of the requirement; or (c) the court is satisfied— (i) exceptional circumstances exist that require the waiver of the requirement; and (ii) it is in the public interest to waive the requirement. (7) For subsection (6)(b), the consent must be given— (a) in writing; or (b) if the counselled person can not give written consent because of a disability—orally. 14H Deciding whether to grant leave (1) The court can not grant an application for leave under this subdivision unless the court is satisfied that— (a) the protected counselling communication the subject of the application will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value; and (b) other documents or evidence concerning the matters to which the communication relates are not available; and (c) the public interest in admitting the communication into evidence substantially outweighs the public interest in— (i) preserving the confidentiality of the communication; and (ii) protecting the counselled person from harm. Page 26 Current as at [Not applicable]
Evidence Act 1977 Part 2 Witnesses [s 14H] Not authorised —indicative only (2) In deciding the matter mentioned in subsection (1)(c), the court must have regard to the following matters— (a) the need to encourage victims of sexual assault offences to seek counselling; (b) that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship; (c) the public interest in ensuring victims of sexual assault offences receive effective counselling; (d) that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person; (e) whether disclosure of the communication is sought on the basis of a discriminatory belief or bias; (f) that the disclosure of the communication is likely to infringe a reasonable expectation of privacy; (g) the extent to which the communication is necessary to enable the accused person to make a full defence; (h) any other matter the court considers relevant. (3) For deciding the application, the court may consider a written or oral statement made to the court by the counselled person outlining the harm the person is likely to suffer if the application is granted. (4) If an oral statement is made by the counselled person under subsection (3), while the statement is being made the court must exclude from the room in which the court is sitting— (a) anyone who is not an essential person; and (b) an essential person, if— (i) the counselled person asks that the essential person be excluded; and (ii) the court considers excluding the essential person would serve a proper interest of the counselled person. Current as at [Not applicable] Page 27
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 14I] (5) The court must not disclose, or make available to a party to the proceeding, a statement made to the court under subsection (3). (6) The court must state its reasons for granting or refusing to grant the application. (7) If the proceeding is a trial by jury, the court must hear and decide the application in the absence of the jury. (8) In this section— harm includes physical, emotional or psychological harm, financial loss, stress or shock, and damage to reputation. Subdivision 4 Waiver or loss of privilege 14I Waiver of privilege by counselled person (1) This section applies, in relation to a proceeding to which subdivision 2 or 3 applies, if a document or evidence is a protected counselling communication. (2) This division does not prevent the document being produced, or the evidence being adduced, if the counselled person to whom the protected counselling communication relates— (a) is 16 years or more; and (b) consents to the production of the document or adducing of the evidence; and (c) is not a person with an impaired capacity for giving the consent. (3) For subsection (2)(b), the consent must— (a) expressly state the counselled person— (i) consents to the production of a stated document, or the adducing of stated evidence, that is a protected counselling communication relating to the person; and Page 28 Current as at [Not applicable]
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 14J] (ii) has had an opportunity to seek legal advice about giving the consent; and (b) be given— (i) in writing; or (ii) if the counselled person can not give written consent because of a disability—orally. (4) To remove any doubt, it is declared that subsection (3)(b) does not require the office of the director of public prosecutions to give the counselled person legal advice. (5) In this section— impaired capacity see the Guardianship and Administration Act 2000 , schedule 4. 14J Loss of privilege if communication made in commission of offence This division does not apply to a document or evidence that is a protected counselling communication if the communication was made in the commission of an offence. Subdivision 5 General provisions 14K Court to inform of rights (1) This section applies in relation to a proceeding to which subdivision 2 or 3 applies if it appears to the court a person may have grounds for— (a) applying for leave under subdivision 3; or (b) objecting to the production of a document, or the adducing of evidence, that is a protected counselling communication. (2) The court must satisfy itself the person is aware of the relevant provisions of this division and has had an opportunity to seek legal advice. Current as at [Not applicable] Page 29
Evidence Act 1977 Part 2 Witnesses [s 14L] (3) If the proceeding is a trial by jury, the court must satisfy itself of the matter under subsection (2) in the absence of the jury. (4) To remove any doubt, it is declared that subsection (2) does not require the office of the director of public prosecutions to give the person legal advice. Not authorised —indicative only 14L Standing of counsellor and counselled person (1) This section applies if— (a) a counselled person or counsellor is not a party to a proceeding to which subdivision 2 or 3 applies; and (b) the court is deciding whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication. (2) The counselled person or counsellor may appear in the proceeding, including any appeal. 14M Deciding whether document or evidence is protected counselling communication (1) This section applies if a question arises under this division in relation to a proceeding to which subdivision 2 or 3 applies. (2) The court may consider a document or evidence to decide whether it is a protected counselling communication. (3) While the court is considering the document or evidence, the court must exclude from the room in which it is sitting— (a) anyone who is not an essential person; and (b) an essential person, if— (i) the counselled person to whom the document or evidence relates asks that the essential person be excluded; and (ii) the court considers excluding the essential person would serve a proper interest of the counselled person. Page 30 Current as at [Not applicable]
Evidence Act 1977 Part 2 Witnesses [s 14N] (4) The court may make any other order it thinks fit to facilitate its consideration of the document or evidence. (5) This section applies despite sections 14D and 14F. Not authorised —indicative only 14N Ancillary orders (1) A court may make any order it considers appropriate to limit the extent of the harm likely to be caused to the counselled person by the production of a document, or the adducing of evidence, that is a protected counselling communication relating to the person. Example— an order that all or part of the evidence be heard, or the document produced, in camera (2) In this section— harm see section 14H. 14O Application of division despite Justices Act 1886 To the extent of an inconsistency, this division applies despite a provision of the Justices Act 1886 . 14P Application of privilege in civil proceedings (1) This section applies if, in a proceeding to which subdivision 2 or 3 applies, a protected counselling communication is privileged under this division. Note— A protected counselling communication is not privileged under this division if— (a) leave is granted under subdivision 3 in relation to it; or (b) the privilege is waived or lost under subdivision 4. (2) A person can not produce a document containing, or adduce evidence of, the protected counselling communication in a civil proceeding arising from the act or omission to which the proceeding mentioned in subsection (1) relates. Current as at [Not applicable] Page 31
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 15] Division 3 Examination and cross-examination of witnesses 15 Questioning a person charged in a criminal proceeding (1) Where in a criminal proceeding a person charged gives evidence, the person shall not be entitled to refuse to answer a question or produce a document or thing on the ground that to do so would tend to prove the commission by the person of the offence with which the person is there charged. (2) Where in a criminal proceeding a person charged gives evidence, the person shall not be asked, and if asked shall not be required to answer, any question tending to show that the person has committed or been convicted of or been charged with any offence other than that with which the person is there charged, or is of bad character, unless— (a) the question is directed to showing a matter of which the proof is admissible evidence to show that the person is guilty of the offence with which the person is there charged; (b) the question is directed to showing a matter of which the proof is admissible evidence to show that any other person charged in that criminal proceeding is not guilty of the offence with which that other person is there charged; (c) the person has personally or by counsel asked questions of any witness with a view to establishing the person’s own good character, or has given evidence of the person’s good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution or of any other person charged in that criminal proceeding; (d) the person has given evidence against any other person charged in that criminal proceeding. Page 32 Current as at [Not applicable]
Evidence Act 1977 Part 2 Witnesses [s 15A] (3) A question of a kind mentioned in subsection (2)(a), (b) or (c) may be asked only with the court’s permission. (4) If the proceeding is a trial by jury, an application for the court’s permission under subsection (3) must be made in the absence of the jury. Not authorised —indicative only 15A Questioning of witness as to certain convictions A witness in any criminal or civil proceeding shall not be asked and if asked shall not be required to answer any question tending to show that the witness has committed or been convicted of or been charged with any offence if, where the witness has been convicted of the offence— (a) the conviction is one in relation to which a rehabilitation period is capable of running pursuant to the Criminal Law (Rehabilitation of Offenders) Act 1986 ; and (b) in relation to the conviction the rehabilitation period within the meaning of that Act is not running at the time of the criminal or civil proceeding; unless the permission of the court to ask the question has first been obtained, such permission to be applied for in a trial by jury in the absence of the jury. 16 Witness may be questioned as to previous conviction Subject to this Act, a witness may be questioned as to whether the witness has been convicted of any indictable or other offence and upon being so questioned, if the witness either denies the fact or refuses to answer, it shall be lawful for the party so questioning to prove such conviction. 17 How far a party may discredit the party’s own witness (1) A party producing a witness shall not be allowed to impeach the credit of the witness by general evidence of bad character but may contradict the witness by other evidence, or (in case the witness in the opinion of the court proves adverse) may by Current as at [Not applicable] Page 33
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 18] leave of the court prove that the witness has made at other times a statement inconsistent with the present testimony of the witness. (2) However, before such last mentioned proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement. 18 Proof of previous inconsistent statement of witness (1) If a witness upon cross-examination as to a former statement made by the witness relative to the subject matter of the proceeding and inconsistent with the present testimony of the witness does not distinctly admit that the witness has made such statement, proof may be given that the witness did in fact make it. (2) However, before such proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement. 19 Witness may be cross-examined as to written statement without being shown it (1) A witness may be cross-examined as to a previous statement made by the witness in writing or reduced into writing relative to the subject matter of the proceeding without such writing being shown to the witness. (1A) However, if it is intended to contradict the witness by the writing the attention of the witness must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting the witness. (2) A court may at any time during the hearing of a proceeding direct that the writing containing a statement referred to in subsection (1) be produced to the court and the court may Page 34 Current as at [Not applicable]
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 20] make such use in the proceeding of the writing as the court thinks fit. 20 Cross-examination as to credit (1) The court may disallow a question as to credit put to a witness in cross-examination, or inform the witness the question need not be answered, if the court considers an admission of the question’s truth would not materially impair confidence in the reliability of the witness’s evidence. (2) In this section— question as to credit , for a witness, means a question that is not relevant to the proceeding except that an admission of the question’s truth may affect the witness’s credit by injuring the witness’s character. 21 Improper questions (1) The court may disallow a question put to a witness in cross-examination or inform a witness a question need not be answered, if the court considers the question is an improper question. (2) In deciding whether a question is an improper question, the court must take into account— (a) any mental, intellectual or physical impairment the witness has or appears to have; and (b) any other matter about the witness the court considers relevant, including, for example, age, education, level of understanding, cultural background or relationship to any party to the proceeding. (3) Subsection (2) does not limit the matters the court may take into account in deciding whether a question is an improper question. (4) In this section— Current as at [Not applicable] Page 35
Evidence Act 1977 Part 2 Witnesses [s 21A] improper question means a question that uses inappropriate language or is misleading, confusing, annoying, harassing, intimidating, offensive, oppressive or repetitive. Not authorised —indicative only Division 4 Evidence of special witnesses 21A Evidence of special witnesses (1) In this section— criminal organisation see the Penalties and Sentences Act 1992 , section 161O. domestic violence see the Domestic and Family Violence Protection Act 2012 , section 8. participant , in a criminal organisation, see the Penalties and Sentences Act 1992 , section 161P. party includes a person who is present in court and is a member, a representative (other than a legal representative) or a nominee of an organisation that is a party to the proceeding. relevant matter , for a person, means the person’s age, education, level of understanding, cultural background or relationship to any party to the proceeding, the nature of the subject matter of the evidence, or another matter the court considers relevant. serious criminal offence means— (a) an indictable offence punishable by at least 7 years imprisonment, including an offence against a repealed provision of an Act; or (b) a prescribed offence as defined under the Penalties and Sentences Act 1992 , section 161N, other than an offence mentioned in paragraph (a), charged with a circumstance of aggravation stated in section 161Q of that Act. sexual offence means an offence of a sexual nature, including, for example— Page 36 Current as at [Not applicable]
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 21A] (a) an offence against a provision of the Criminal Code, chapter 32; and (b) an offence against a provision of the Criminal Code, chapter 22. special witness means— (a) a child under 16 years; or (b) a person who, in the court’s opinion— (i) would, as a result of a mental, intellectual or physical impairment or a relevant matter, be likely to be disadvantaged as a witness; or (ii) would be likely to suffer severe emotional trauma; or (iii) would be likely to be so intimidated as to be disadvantaged as a witness; if required to give evidence in accordance with the usual rules and practice of the court; or (c) a person who is to give evidence about the commission of a serious criminal offence committed by a criminal organisation or a participant in a criminal organisation; or (d) a person— (i) against whom domestic violence has been or is alleged to have been committed by another person; and (ii) who is to give evidence about the commission of an offence by the other person; or (e) a person— (i) against whom a sexual offence has been, or is alleged to have been, committed by another person; and (ii) who is to give evidence about the commission of an offence by the other person. Current as at [Not applicable] Page 37
Evidence Act 1977 Part 2 Witnesses [s 21A] Not authorised —indicative only (1A) This section does not apply to a child to the extent division 4A applies to the child. (1B) A party to a proceeding or, in a criminal proceeding, the person charged may be a special witness. (2) Where a special witness is to give or is giving evidence in any proceeding, the court may, of its own motion or upon application made by a party to the proceeding, make or give 1 or more of the following orders or directions— (a) in the case of a criminal proceeding—that the person charged or other party to the proceeding be excluded from the room in which the court is sitting or be obscured from the view of the special witness while the special witness is giving evidence or is required to appear in court for any other purpose; (b) that, while the special witness is giving evidence, all persons other than those specified by the court be excluded from the room in which it is sitting; (c) that the special witness give evidence in a room— (i) other than that in which the court is sitting; and (ii) from which all persons other than those specified by the court are excluded; (d) that a person approved by the court be present while the special witness is giving evidence or is required to appear in court for any other purpose in order to provide emotional support to the special witness; (e) that a videorecording of the evidence of the special witness or any portion of it be made under such conditions as are specified in the order and that the videorecorded evidence be viewed and heard in the proceeding instead of the direct testimony of the special witness; (f) another order or direction the court considers appropriate about the giving of evidence by the special witness, including, for example, any of the following— Page 38 Current as at [Not applicable]
Evidence Act 1977 Part 2 Witnesses [s 21A] Not authorised —indicative only (i) a direction about rest breaks for the special witness; (ii) a direction that questions for the special witness be kept simple; (iii) a direction that questions for the special witness be limited by time; (iv) a direction that the number of questions for a special witness on a particular issue be limited. (4) Subject to any order made pursuant to subsection (5), in any criminal proceeding an order shall not be made pursuant to subsection (2)(a), (b) or (c) excluding the person charged from the room in which a special witness is giving evidence unless provision is made, by means of an electronic device or otherwise, for that person to see and hear the special witness while the special witness is giving evidence. (5) Where the making of a videorecording of the evidence of a special witness is ordered pursuant to subsection (2)(e), the court may further order that all persons other than those specified by the court be excluded from the room in which the special witness is giving that evidence. (5A) However, any person entitled in the proceeding to examine or cross-examine the special witness shall be given reasonable opportunity to view any portion of the videorecording of the evidence relevant to the conduct of that examination or cross-examination. (6) A videorecording made under this section of evidence given by a special witness, or a lawfully edited copy of the videorecording— (a) is as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court; and (b) is, unless the relevant court otherwise orders, admissible in— (i) any rehearing or retrial of, or appeal from, the proceeding; or Current as at [Not applicable] Page 39
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 21A] (ii) in the case of evidence given for a criminal proceeding— (A) another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or (B) a civil proceeding arising from the commission of the offence. (6A) A reference in subsection (6) to a videorecording made under this section includes a reference to a copy of the videorecording on a separate data storage medium if— (a) the videorecording is a digital recording; and (b) the copy of the videorecording on the separate data storage medium has been made by— (i) the principal registrar of a court; or (ii) a person authorised by the principal registrar of a court to copy the videorecording onto the separate data storage medium. (7) The room in which a special witness gives evidence pursuant to an order made pursuant to subsection (2)(c) or (e) shall be deemed to be part of the court in which the proceeding is being held. (8) If evidence is given, or to be given, in a proceeding on indictment under an order or direction mentioned in subsection (2)(a) to (e), the judge presiding at the proceeding must instruct the jury that— (a) they should not draw any inference as to the defendant’s guilt from the order or direction; and (b) the probative value of the evidence is not increased or decreased because of the order or direction; and (c) the evidence is not to be given any greater or lesser weight because of the order or direction. Page 40 Current as at [Not applicable]
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 21AAA] 21AAA Exclusion of particular persons while videorecording or usable soundtrack being presented (1) This section applies if the evidence of a special witness contained in either of the following is to be presented at a proceeding— (a) a videorecording made under section 21A, or a lawfully edited copy of the videorecording; (b) the usable soundtrack of a videorecording, or a lawfully edited copy of a videorecording, mentioned in paragraph (a), or a lawfully edited copy of the usable soundtrack. Note— See part 2, division 4AA in relation to the use of soundtracks from particular recordings. (2) The court may, on its own initiative or on an application made by a party to the proceeding, order that, while the evidence is being presented at the proceeding, all persons other than those specified by the court be excluded from the room in which it is sitting. (3) However, if the evidence is to be presented at a criminal proceeding, the court may not, under subsection (2), exclude the person charged. Notes— 1 See section 21A(2)(a) and (b), (4) and (5) in relation to the court’s power to exclude particular persons while a special witness is giving evidence under that section. 2 See the Child Protection Act 1999 , section 193 for restrictions on disclosing identifying information about a special witness who is a child. Current as at [Not applicable] Page 41
Evidence Act 1977 Part 2 Witnesses [s 21AA] Division 4A Evidence of affected children Not authorised —indicative only Subdivision 1 Preliminary 21AA Purposes of div 4A The purposes of this division are— (a) to preserve, to the greatest extent practicable, the integrity of an affected child’s evidence; and (b) to require, wherever practicable, that an affected child’s evidence be taken in an environment that limits, to the greatest extent practicable, the distress and trauma that might otherwise be experienced by the child when giving evidence. 21AB How purposes are to be achieved To achieve the purposes of this division, the division prescribes the following measures for an affected child when giving evidence for a relevant proceeding— (a) for a criminal proceeding— (i) the child’s evidence is to be prerecorded in the presence of a judicial officer, but in advance of the proceeding; (ii) if the measure in subparagraph (i) can not be given effect, the child’s evidence is to be given at the proceeding, but with the use of an audio visual link or with the benefit of a screen; (iii) for a committal proceeding, the child’s evidence-in chief is to be given only as a statement and, ordinarily, the child is not to be called as a witness for cross-examination; (b) for a civil proceeding, the child’s evidence is to be given at the proceeding with the use of an audio visual link or with the benefit of a screen. Page 42 Current as at [Not applicable]
Evidence Act 1977 Part 2 Witnesses [s 21AC] Not authorised —indicative only 21AC Definitions for div 4A In this division— affected child means a child who is a witness in a relevant proceeding and who is not a defendant in the proceeding. child see section 21AD. civil proceeding arising from the commission of a relevant offence does not include a proceeding for a domestic violence order under the Domestic and Family Violence Protection Act 2012 . counsel includes solicitor. defendant means— (a) in a criminal proceeding—a person charged with an offence; or (b) in a civil proceeding arising from the commission of a relevant offence—a person whose act or omission is complained of. offence involving violence means an offence against any of the following provisions of the Criminal Code— a provision of chapter 28 or 28A a provision of chapter 29 other than section 317A, 318, 319, 319A, 321, 321A, 327, 329, 330, 333 or 334 sections 335, 339, 340, 354, 354A and 355 a provision of chapter 33A sections 363, 363A and 364. offence of a sexual nature means an offence against any of the following provisions of the Criminal Code— a provision of chapter 22 a provision of chapter 32. parentage order relationship means a relationship arising because of— (a) a parentage order under the Surrogacy Act 2010 ; or Current as at [Not applicable] Page 43
Evidence Act 1977 Part 2 Witnesses [s 21AC] Not authorised —indicative only Page 44 (b) an order of another Australian jurisdiction that corresponds to a parentage order made under that Act. preliminary hearing means a hearing under section 21AK. prescribed relationship , between a child who is a witness in a proceeding and a defendant in the proceeding, means any of the following— (a) a relationship, regardless of whether it is a half, adoptive, step or parentage order relationship, where the defendant is— (i) a parent of the child; or (ii) a grandparent of the child; or (iii) a brother or sister of the child; or (iv) an uncle, aunt, nephew, niece or cousin of the child; (b) a relationship arising because, at the time of the alleged offence with which the defendant is charged, the defendant lived in the same household as the child; (c) a relationship arising because the defendant had the care of, or exercised authority over, the child in a household on a regular basis. proceeding means any civil or criminal proceeding, including a preliminary hearing. relevant offence , in relation to a proceeding, means— (a) an offence of a sexual nature; or (b) an offence involving violence, if there is a prescribed relationship between a child who is a witness in the proceeding and a defendant in the proceeding. relevant proceeding means— (a) a criminal proceeding for a relevant offence, whether or not the proceeding also relates to other offences; or (b) a civil proceeding arising from the commission of a relevant offence. Current as at [Not applicable]
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 21AD] step relationship includes a relationship corresponding to a step relationship arising because of cohabitation in a de facto relationship or because of a foster relationship or a legal arrangement. 21AD Meaning of child (1) For the purposes of a proceeding for this division, a child is— (a) if the proceeding is a criminal proceeding— (i) an individual who is under 16 years when the first of the following happens— (A) the defendant in the proceeding is arrested; (B) a complaint is made under the Justices Act 1886 , section 42 in relation to the defendant in the proceeding; (C) a notice to appear is served on the defendant in the proceeding under the Police Powers and Responsibilities Act 2000 , section 382; or (ii) an individual who is 16 or 17 years when the first of the matters mentioned in subparagraph (i) happens and who is a special witness; or (b) if the proceeding is a civil proceeding arising from the commission of a relevant offence— (i) an individual who is under 16 years when the proceeding starts; or (ii) an individual who is 16 or 17 years when the proceeding starts and who is a special witness. (2) An individual remains a child for the purposes of giving evidence for a proceeding if the child gives evidence for the proceeding at any time before the child turns 18 years. Current as at [Not applicable] Page 45
Evidence Act 1977 Part 2 Witnesses [s 21AE] Subdivision 2 Committal proceeding Not authorised —indicative only 21AE Application of sdiv 2 This subdivision applies to the taking of an affected child’s evidence for a committal proceeding for a relevant offence, whether or not the committal proceeding also relates to other offences. 21AF Evidence-in-chief (1) The affected child’s evidence-in-chief must be given as a statement without the child being called as a witness. (2) For this section, the Justices Act 1886 , section 110A applies with all necessary changes and as though a reference in that section to a written statement included a reference to a statement contained in a document as defined under schedule 3. (3) Also, for the purposes of applying the Justices Act 1886 , section 110A, that section is to be read with the following changes— (a) if the child’s statement is a written statement— subsections (4), (5), (6), (6B), (8) and (9) of that section were omitted; (b) if the child’s statement is not a written statement— (i) subsections (4), (5), (6), (6B), (6C), (8) and (9) of that section were omitted; and (ii) in subsection (13)— (A) the words ‘read as evidence’ were omitted and the words ‘received as evidence’ were inserted in their place; and (B) paragraph (a) were omitted. (4) Further, for the purposes of applying the Justices Act 1886 , section 111, that section applies with all necessary changes and is to be read as though, in subsections (1) and (2), the Page 46 Current as at [Not applicable]
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 21AG] words ‘read as evidence’ were omitted and the words ‘received as evidence’ were inserted in their place. (5) In addition, for the purposes of applying the Criminal Law Amendment Act 1892 , section 4, that section applies with all necessary changes and is to be read as though— (a) a reference to a deposition included a reference to a statement contained in a document; and (b) a reference to the reading of a deposition that is not a written statement included a reference to the showing of a statement contained in a document. (6) In this section— statement means— (a) a written statement; or (b) a statement contained in a document. 21AG Cross-examination (1) The affected child may be cross-examined only if, under this section, a magistrate requires a party to call the child as a witness for that purpose. (2) The requirement may be made, on an application, by— (a) a magistrate at a direction hearing under the Justices Act 1886 , section 83A; or (b) the magistrate presiding at the committal proceeding. (3) A magistrate at a direction hearing must not require the child to be called as a witness for cross-examination unless the magistrate is satisfied that— (a) the party seeking to cross-examine the child has— (i) identified an issue to which the proposed questioning relates; and (ii) provided a reason why the evidence of the child is relevant to the issue; and Current as at [Not applicable] Page 47
Evidence Act 1977 Part 2 Witnesses [s 21AG] Not authorised —indicative only (iii) explained why the evidence disclosed by the prosecution does not address the issue; and (iv) identified to the magistrate the purpose and general nature of the questions to be put to the child to address the issue; and (b) the interests of justice can not adequately be satisfied by leaving cross-examination of the child about the issue to the trial. (4) The magistrate presiding at the committal proceeding must not require the child to be called as a witness for cross-examination unless the magistrate is satisfied that— (a) the evidence before the court at the committal has identified an issue to which the proposed questioning relates that could not reasonably have been anticipated before the committal; and (b) the party making the application has— (i) provided a reason why the evidence of the child is relevant to the issue; and (ii) explained why the evidence before the court does not address the issue; and (iii) identified to the magistrate the purpose and general nature of the questions to be put to the child to address the issue; and (c) the interests of justice can not adequately be satisfied by leaving cross-examination of the child about the issue to the trial. (5) Without limiting the matters to which the magistrate may have regard for subsection (3)(b) or (4)(c), the magistrate— (a) must consider whether— (i) the prosecution case is adequately disclosed; and (ii) the charge is adequately particularised; and (b) must have regard to the vulnerability of children, the general principles stated in section 9E and the Page 48 Current as at [Not applicable]
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 21AG] undesirability of calling a child as a witness for a committal proceeding. (6) The magistrate must give reasons for the magistrate’s decision on the application. (7) If, under this section, the magistrate requires a party to call the child as a witness for cross-examination— (a) the child’s evidence must be taken under subdivision 3 or 4; and (b) when the magistrate decides the application, the magistrate must decide whether the child’s evidence is to be taken under subdivision 3 or under subdivision 4, and how it is to be taken, and give a direction accordingly. (8) In deciding whether the child’s evidence is to be taken under subdivision 3 or 4, and how it is to be taken, the magistrate must have regard to the following— (a) the distress or trauma likely to be suffered by the child when giving evidence and the need to minimise the child’s distress or trauma; (b) whether a local court has an audio visual link and, if not, the availability of another appropriate place with appropriate equipment and facilities for taking or videorecording the child’s evidence under subdivision 3 or 4; (c) whether the parties would be substantially inconvenienced if the proceeding were to be adjourned to another place mentioned in paragraph (b) that is not within the same locality as the court; (d) the need for committal proceedings to be conducted expeditiously. (9) In this section— local court means— Current as at [Not applicable] Page 49
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 21AH] (a) in relation to a magistrate at a direction hearing—a court at which the committal proceeding would ordinarily be held; or (b) in relation to the magistrate presiding at the committal proceeding—the court in which the committal proceeding is being held or another court within the court precincts. magistrate , presiding at a committal proceeding, includes justices presiding at the proceeding. 21AH Limitation on cross-examination (1) If the affected child is to be cross-examined, the party calling the child may first ask the child questions for identifying the child and establishing that the child made the statement mentioned in section 21AF and the truthfulness of the statement. (2) The presiding magistrate or justices must not allow the child to be cross-examined about an issue other than the issue in relation to which the child was required to be called unless the magistrate or justices are satisfied as mentioned in section 21AG(3)(a) and (b) or section 21AG(4)(a) to (c), whichever is relevant, in relation to the issue. (3) Also, the presiding magistrate or justices— (a) must not allow cross-examination to continue to the extent it— (i) does not appear relevant to an issue for which it may be conducted; or (ii) consists of exploratory questions asked in the hope of receiving any answer of any assistance to the party conducting the cross-examination, commonly known as a ‘fishing expedition’; and (b) must disallow a question that may be disallowed under section 20 or 21. (4) The child may be re-examined by the party calling the child. Page 50 Current as at [Not applicable]
Not authorised —indicative only Subdivision 3 Evidence Act 1977 Part 2 Witnesses [s 21AI] Prerecording of affected child’s evidence 21AI Application of sdiv 3 (1) This subdivision applies to taking an affected child’s evidence— (a) for a summary trial for a relevant offence; and (b) for a trial on indictment for a relevant offence; and (c) for a committal proceeding for a relevant offence, if a magistrate or justices give a direction as mentioned in section 21AG(7)(b) that the child’s evidence is to be taken under this subdivision. (2) However, this subdivision does not apply to an affected child who is a witness for the defence. (3) Subsection (1) applies to a proceeding whether or not the proceeding also relates to offences other than the relevant offence. 21AJ Presentation of indictment If the affected child’s evidence is to be taken for a trial on indictment, the indictment must be presented before the evidence can be taken under this subdivision. 21AK Videorecording of affected child’s evidence (1) The affected child’s evidence must be taken and videorecorded at a hearing under this section (a preliminary hearing ) presided over by a judicial officer. Note— See section 21AO for when a court may order that an affected child’s evidence not be taken and videorecorded under this subdivision. (2) The videorecording must be presented— Current as at [Not applicable] Page 51
Evidence Act 1977 Part 2 Witnesses [s 21AK] Not authorised —indicative only (a) if taken for a committal proceeding—to the court at the committal proceeding; or (b) if taken for a trial—to the court at the trial. (3) To facilitate the operation of this section for the taking of the child’s evidence in a proceeding, the judicial officer may order that the preliminary hearing be conducted by audio visual link. (4) The provisions of part 3A relating to the use of an audio visual link in criminal proceedings apply for, and are not limited by, subsection (3). (5) To facilitate the operation of this section for a trial, the judicial officer must, if it is not practicable at the place of the trial to take and videorecord the child’s evidence— (a) adjourn the trial to an appropriately equipped place to allow the evidence to be taken and videorecorded; or (b) make another order the judicial officer considers appropriate including, for example, an order that the preliminary hearing be conducted by audio visual link. (6) If the taking and videorecording of the child’s evidence is done at a place that is not a courtroom, the place is taken to be a courtroom for all purposes for the preliminary hearing. (7) It does not matter whether or not the judicial officer presiding and the counsel appearing at the preliminary hearing are the same judicial officer presiding and counsel appearing at an adjourned preliminary hearing or at the proceeding in which the videorecording is presented to the court. (8) Also, it does not matter if, while the preliminary hearing is conducted, the judicial officer, counsel, parties and witnesses are at different places. Example— To facilitate the taking and videorecording of the affected child’s evidence, the judicial officer directs that the child give the evidence by audio visual link. The preliminary hearing is conducted while the judicial officer, counsel and defendant are in a courtroom in a particular city and the child is in a room in another city connected to the courtroom through the audio visual link. Page 52 Current as at [Not applicable]
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 21AL] (9) In this section— appropriately equipped place , for the taking and videorecording of an affected child’s evidence, means a court, or another place that is not a court, that— (a) is equipped to take and videorecord the child’s evidence; and (b) allows the defendant to see and hear the child while the child is giving evidence, for example, through an audio visual link. evidence means evidence-in-chief or evidence given in cross-examination or re-examination. 21AL Court to give directions for taking an affected child’s evidence (1) The judicial officer presiding at the preliminary hearing may make any order the judicial officer considers appropriate in relation to taking and videorecording the affected child’s evidence. (2) Without limiting subsection (1), the judicial officer may give directions, with or without conditions, as to the conduct of the preliminary hearing, including directions as to— (a) whether the child is to be in the courtroom or a separate room when the child’s evidence is being taken; and (b) the persons who may be present in the same room as the child when the child’s evidence is being taken. (3) Subsection (2)(b) is subject to section 21AU. Note— Section 21AU makes provision about the exclusion of persons while an affected child witness is giving evidence in relation to a relevant offence. (4) At the preliminary hearing— (a) the defendant— Current as at [Not applicable] Page 53
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 21AM] (i) must not be in the same room as the child when the child’s evidence is being taken; but (ii) must be capable of seeing and hearing the child while the child is giving evidence; and (b) subject to the judicial officer’s control, the child is to give his or her evidence-in-chief and be cross-examined and re-examined; and (c) except as provided by this subdivision, the usual rules of evidence apply. (5) The judicial officer may adjourn the hearing from time to time until the taking and videorecording of the child’s evidence is complete. 21AM Use of prerecorded evidence (1) The affected child’s evidence contained in a videorecording made under this subdivision for a proceeding, or in a lawfully edited copy of the videorecording— (a) is as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court; and (b) is, unless the relevant court otherwise orders, admissible in— (i) any rehearing or retrial of, or appeal from, the proceeding; or (ii) another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or (iii) a civil proceeding arising from the commission of the relevant offence. (2) The admissibility of the evidence for a proceeding is not affected only because the child turns 18 before the evidence is presented at the proceeding. Page 54 Current as at [Not applicable]
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 21AN] (3) A reference in subsection (1) to a videorecording made under this subdivision for a proceeding includes a reference to a copy of the videorecording on a separate data storage medium if— (a) the videorecording is a digital recording; and (b) the copy of the videorecording on the separate data storage medium has been made by— (i) the principal registrar of a court; or (ii) a person authorised by the principal registrar of a court to copy the videorecording onto the separate data storage medium. 21AN Giving of further evidence (1) This section applies if the affected child has given evidence under this subdivision for a proceeding and has been excused from further attendance as a witness at the proceeding. (2) A party may apply to the court for an order that the child— (a) give further evidence under this subdivision at another preliminary hearing; or (b) attend at the proceeding to give further evidence. (3) The court must not make the order unless satisfied that— (a) if the child were giving evidence before a court in the ordinary way, the child could be recalled to give further evidence; and (b) it would be in the interests of justice to make the order. (4) The court must not make an order that the child attend at the proceeding to give further evidence unless satisfied it is not possible or not practical for the child to give the further evidence at another preliminary hearing. Current as at [Not applicable] Page 55
Not authorised —indicative only Evidence Act 1977 Part 2 Witnesses [s 21AO] 21AO Court order that evidence not to be taken and recorded under this sdiv (1) This section applies if an affected child is to give evidence in a criminal proceeding, other than a committal proceeding, for a relevant offence. (2) A party may apply to the court for an order that the child’s evidence not be taken and videorecorded under this subdivision. (3) The court may make the order for good reason, having regard to the child’s wishes and the purposes of this division. Example— If a courtroom or other place with facilities to take and videorecord the affected child’s evidence is not likely to be available within a reasonable time, the court may decide the child’s interests are better served by dealing with the proceeding quickly rather than waiting for a courtroom or other place