QueenslandEvidenceAct1977Current as at [Not
applicable]Indicative reprint noteThis is anunofficialversion of a
reprint of this Act that incorporates allproposed
amendments to the Act included in the Termination of
PregnancyBill 2018. This indicative reprint has been
prepared for information only—itis not
an authorised reprint of the Act.The
point-in-time date for this indicative reprint is the introduction
date forthe Termination of Pregnancy Bill 2018—22
August 2018.DetailedinformationaboutindicativereprintsisavailableontheInformationpage of the
Queensland legislation website.
Evidence Act 1977Evidence Act
1977Part 1 Preliminary[s 1]An Act
to consolidate, amend and reform the law of evidenceand
for related purposesNotauthorised—indicativeonlyPart
1Preliminary1Short
titleThis Act may be cited as theEvidence Act 1977.2Act binds CrownThisActbindstheCrownnotonlyinrightoftheStateofQueenslandbutalso,sofarasthelegislativepowerofParliament permits, the Crown in all
its other capacities.2ANotes in
textA note in the text of this Act is part of
the Act.3DefinitionsThe dictionary
in schedule 3 defines particular words used inthis Act.4Meaning ofcopyof
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)butnotparagraph(f)ofthedefinitiondocumentinCurrent as at [Not applicable]Page
13
Notauthorised—indicativeonlyEvidence Act 1977Part 1
Preliminary[s 5]schedule
3—atranscriptofthesoundsorotherdataembodied therein; and(b)in
the case of a document falling within paragraph (f)but
not paragraph (e) of that definition—a reproductionor
still reproduction of the image or images embodiedtherein, whether enlarged or not; and(c)inthecaseofadocumentfallingwithinboththoseparagraphs—suchatranscripttogetherwithsuchareproduction or still reproduction;
and(d)inthecaseofadocumentnotfallingwithinthesaidparagraph (f) of
which a visual image is embodied in adocument falling
within that paragraph—a reproductionor still
reproduction of that image, whether enlarged ornot;and
any reference to a copy of the material part of a documentshall be construed accordingly.5Meaning of document purporting to be
of certaincharacter etc.ForthepurposesofthisActadocument,includinganyinstrument 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 apersonhavingacertainqualificationoroccupyingacertain office; or(c)any
other matter whatever;if the document expressly or impliedly
represents that matteroracourtcanassumethatmatterfromthecontentsofthedocument or otherwise.Page
14Current as at [Not applicable]
Part
2WitnessesEvidence Act
1977Part 2 Witnesses[s 6]Notauthorised—indicativeonlyDivision 1Who may
testify6Witnesses interested or convicted of
offenceNopersonshallbeexcludedfromgivingevidenceinanyproceeding on
the ground—(a)that the person has or may have an
interest in the matterin question, or in the result of the
proceeding; or(b)thatthepersonhaspreviouslybeenconvictedofanyoffence.7Parties, their wives and husbands as
witnesses(1)Eachofthepartiestoaproceeding(notbeingacriminalproceeding) and
a person on whose behalf such a proceedingis brought or
defended is competent and compellable to giveevidenceonbehalfofeitheroranyofthepartiestotheproceeding.(2)The
husband or wife of a party to a proceeding (not being acriminal proceeding) and the husband or wife
of a person onwhosebehalfsuchaproceedingisbroughtordefendediscompetentandcompellabletogiveevidenceonbehalfofeither or any of the parties to the
proceeding.(3)To remove any doubt, it is declared
for subsections (1) and (2)thatapartytoaproceedingincludesapersonwhoisthesubject of an
inquiry, reference or examination.8Witnesses in a criminal proceeding(1)In a criminal proceeding, each person
charged is competent togive evidence on behalf of the defence
(whether that person ischargedsolelyorjointlywithanyotherperson)butisnotcompellable to do so.Current as at
[Not applicable]Page 15
Notauthorised—indicativeonlyEvidence Act 1977Part 2
Witnesses[s 9](2)Thehusbandorwifeofanaccusedpersoninacriminalproceeding is competent and compellable to
give evidence inthe proceeding in any court, either for the
prosecution or forthe defence, and without the consent of the
accused.(3)In a criminal proceeding, a husband or
wife is competent andcompellabletodisclosecommunicationsmadebetweenthehusband and the wife during the
marriage.Division 1ACompetency of
witnesses andcapacity to be sworn9Presumption 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.9ACompetency to give evidence(1)This section applies if, in a
particular case, an issue is raised,byapartytotheproceedingorthecourt,aboutthecompetency of a person called as a
witness in the proceedingto 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
intelligibleaccountofeventswhichheorshehasobservedorexperienced.(3)Subsection (2) applies even though the
evidence is not givenon oath.9BCompetency to give sworn evidence(1)This section applies if, in a
particular case, an issue is raised,byapartytotheproceedingorthecourt,aboutthePage 16Current as at
[Not applicable]
Notauthorised—indicativeonlyEvidence Act 1977Part 2
Witnesses[s 9C]competency of a
person called as a witness in the proceedingto give evidence
on oath.(2)The person is competent to give
evidence in the proceeding onoath 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 thetruth that is over and above the ordinary
duty to tell thetruth.(3)If
the person is competent to give evidence in the proceedingbut
is not competent to give the evidence on oath, the courtmust
explain to the person the duty of speaking the truth.Note—TheOaths Act 1867, section 17,
makes provision for a person called asa witness to
make his or her solemn affirmation instead of being sworn.9CExpert 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 personis able to give an intelligible account of
events which heor she has observed or experienced;
or(b)under section 9B, the court is
deciding whether a personunderstandsthemattersmentionedinsection 9B(2)(a)and (b);
or(c)the evidence of a child under 12 years
is admitted.(2)Expertevidenceisadmissibleintheproceedingabouttheperson’s or child’s level of
intelligence, including the person’sor child’s
powers of perception, memory and expression, oranother matter
relevant to the person’s or child’s competencetogiveevidence,competencetogiveevidenceonoath,orability to give reliable evidence.Current as at [Not applicable]Page
17
Notauthorised—indicativeonlyEvidence Act 1977Part 2
Witnesses[s 9D]9DEvidence admitted under s 9A(1)Evidence admitted under section 9A
that is written down as adeposition 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 onlybecause the evidence is not given on oath;
and(b)a person charged with an offence may
be convicted onthe evidence; and(c)the
person giving the evidence is liable to be convictedof
perjury to the same extent as if the person had giventhe
evidence on oath.Division 1BSpecial
provisions for childwitnesses9EPrinciples for dealing with a child
witness(1)Becauseachildtendstobevulnerableindealingswithaperson in authority, it is the
Parliament’s intention that a childwho is a witness
in a proceeding should be given the benefit ofspecial measures
when giving the child’s evidence.(2)The
following general principles apply when dealing with achild witness in a proceeding—(a)thechildistobetreatedwithdignity,respectandcompassion;(b)measuresshouldbetakentolimit,tothegreatestpractical
extent, the distress or trauma suffered by thechild when
giving evidence;(c)thechildshouldnotbeintimidatedincross-examination;(d)theproceedingshouldberesolvedasquicklyaspossible.(3)In
this section—Page 18Current as at
[Not applicable]
childmeans a child
under 16 years.Evidence Act 1977Part 2
Witnesses[s 10]Notauthorised—indicativeonlyDivision 2Privileges and
obligations ofwitnesses10Privilege against self-incrimination(1)NothinginthisActshallrenderanypersoncompellabletoanswer any question tending to criminate the
person.(2)However,inacriminalproceedingwhereapersonchargedgivesevidence,theperson’sliabilitytoansweranysuchquestion shall
be governed by section 15.12Admissibility of
evidence as to access by husband orwifeNotwithstanding anything contained in any
Act or any rule oflaw,neithertheevidenceofanypersonnoranystatementmade out of
court by any person shall be inadmissible in anyproceeding whatever by reason of the fact
that it is tenderedwith the object of proving, or that it
proves or tends to prove,that marital intercourse did or did
not take place at any time orduring any
period between that person and a person who is orwas
the person’s wife or husband or that any child is or was,or
is not or was not, their legitimate child.13Compellability of parties and witnesses as
to evidence ofadulteryNotwithstanding
anything in any Act or any rule of law, in anyproceeding
whatever—(a)apartyshallnotbeentitledtorefusetoansweranyinterrogatory or to give discovery of
documents;(b)a witness, whether a party or not,
shall not be entitled torefuse to answer any question, whether
relevant to anyissue or relating to credit merely;Current as at [Not applicable]Page
19
Notauthorised—indicativeonlyEvidence Act 1977Part 2
Witnesses[s 14]on the ground
solely that such answer or discovery would ormightrelateto,orwouldtendormighttendtoestablish,adultery by that
party or that witness, or by any other personwith that party
or that witness, as the case may be.14Abolition of certain privileges(1)Thefollowingrulesoflawareherebyabrogatedexceptinrelation to criminal proceedings, that
is to say—(a)the rule whereby, in any proceeding, a
person can not becompelledtoansweranyquestionorproduceanydocument or thing if to do so would tend to
expose theperson to a forfeiture;(b)the
rule whereby, in any proceeding, a person other thanapartytotheproceedingcannotbecompelledtoproduceanydeedorotherdocumentrelatingtotheperson’s title to any land.(2)The rule of law whereby, in any civil
proceeding, a party totheproceedingcannotbecompelledtoproduceanydocumentrelatingsolelytotheparty’sowncaseandinnoway tending to
impeach that case or support the case of anyopposing party
is hereby abrogated.Division 2ASexual assault
counselling privilegeSubdivision 1Preliminary14AMeaning ofprotected
counselling communication(1)Aprotected counselling communicationis
an oral or writtencommunication made in confidence—(a)by a counselled person to a
counsellor; or(b)byacounsellortooraboutacounselledpersontofurther the counselling process;
orPage 20Current as at
[Not applicable]
Notauthorised—indicativeonlyEvidence Act 1977Part 2
Witnesses[s 14B](c)aboutacounselledpersonbyaparent,carerorothersupportpersonwhoispresenttofacilitatecommunicationbetweenthecounselledpersonandacounsellorortootherwisefurtherthecounsellingprocess.(2)However, a communication made to or by
a health practitioneraboutaphysicalexaminationofthecounselledpersonconductedinthecourseofaninvestigationintoanallegedsexualassaultoffenceisnotaprotectedcounsellingcommunication.(3)Forsubsection(1)itdoesnotmatterwhetherthecommunication was made—(a)beforeoraftertheactoromissionconstitutingthesexualassaultoffencecommittedorallegedlycommitted
against the counselled person occurred; or(b)inconnectionwiththesexualassaultoffence,oraconditionarisingfromthesexualassaultoffence,committedorallegedlycommittedagainstthecounselled person.(4)Areferenceinthisdivisiontoaprotectedcounsellingcommunication
includes a reference to—(a)adocumenttotheextentitcontainsaprotectedcounselling
communication; or(b)evidencetotheextentitdisclosesaprotectedcounselling
communication.(5)In this section—healthpractitionermeansapersonregisteredundertheHealthPractitionerRegulationNationalLawtopractiseahealth profession.14BOther
definitions for divisionIn this division—counsela
person means—Current as at [Not applicable]Page
21
Notauthorised—indicativeonlyEvidence Act 1977Part 2
Witnesses[s 14B](a)tolistentoandgiveverbalorothersupport,helporencouragement to the person, whether
one-on-one or ina group; or(b)to
advise, give therapy to or treat the person, whetherone-on-one or in a group.counselled personmeans a person
who—(a)isbeing,orhasatanytimebeen,counselledbyacounsellor; and(b)is,
or has at any time been, a victim or alleged victim ofa
sexual assault offence.counsellormeans a person
who—(a)has undertaken training or study, or
has experience, thatis relevant to the process of
counselling other persons;and(b)inthecourseoftheperson’spaidorvoluntaryemployment,otherthanasareligiousrepresentative,counsels another
person.essentialperson,foraproceeding,meansanyofthefollowing persons—(a)a
Crown law officer or a person authorised by a Crownlaw
officer;(b)the prosecutor;(c)a
witness giving evidence;(d)apersonwhoawitnessisentitledtohavepresentincourt under section 21A(2)(d) or 21AV
or theCriminalLaw (Sexual
Offences) Act 1978, section 5(1)(f);(e)apersonwhosepresenceis,inthecourt’sopinion,necessaryordesirablefortheproperconductoftheproceeding;(f)apersonwhoappliestothecourttobepresentandwhose presence, in the court’s
opinion—(i)would serve a proper interest of the
person; andPage 22Current as at
[Not applicable]
Notauthorised—indicativeonlyEvidence Act 1977Part 2
Witnesses[s 14C](ii)would not be prejudicial to a counselled
person’sinterests.religious
representativemeans 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,ordoesnotconsideritselftobepartof,anorganised
religion; and(b)holds a position in the religion or
group that allows theperson to hold himself or herself out
as a representativeof the religion or group.sexual assault offencemeans—(a)an offence of a sexual nature,
including, for example—(i)anoffenceagainstaprovisionoftheCriminalCode, chapter
32; and(ii)anoffenceagainstaprovisionoftheCriminalCode, chapter
22; or(b)anactoromissionthatwouldconstituteanoffencementionedinparagraph(a) iftheactoromissionhadoccurred—(i)in
Queensland; or(ii)after the
offence provision commenced; or(c)an
alleged offence mentioned in paragraph (a).Subdivision
2Committal and bail proceedings14CApplication of subdivisionThis
subdivision applies to—(a)a committal
proceeding; orCurrent as at [Not applicable]Page
23
Evidence Act 1977Part 2
Witnesses[s 14D](b)a
proceeding under theBail Act 1980relating to bail
foranoffence,includingaproceedingrelatingtotheremand of a
person in custody.Notauthorised—indicativeonly14DSexual assault
counselling privilegeA person can not do any of the
following things in connectionwith the
proceeding—(a)compel,whetherbysubpoenaorotherwise,anotherpersontoproduceaprotectedcounsellingcommunication to
a court;(b)produce to a court, adduce evidence of
or otherwise use,a protected counselling
communication;(c)otherwisedisclose,inspectorcopyaprotectedcounselling
communication.Subdivision 3Other
proceedings14EApplication of subdivisionThis
subdivision applies to a proceeding—(a)forthetrialorsentencingofapersonforanoffence,other than a
proceeding to which subdivision 2 applies;or(b)relating to a domestic violence order
under theDomesticand Family
Violence Protection Act 2012.14FSexual assault counselling
privilegeA person can not do any of the following
things in connectionwiththeproceeding,otherthanwiththeleaveofthecourthearing the
proceeding—(a)compel,whetherbysubpoenaorotherwise,anotherpersontoproduceaprotectedcounsellingcommunication to
a court;Page 24Current as at
[Not applicable]
Evidence Act 1977Part 2
Witnesses[s 14G](b)produce to a court, adduce evidence of or
otherwise use,a protected counselling
communication;(c)otherwisedisclose,inspectorcopyaprotectedcounselling
communication.Notauthorised—indicativeonly14GApplication for leave(1)A party to theproceeding may
apply for leave of the courtunder this
subdivision.(2)Assoonasreasonablypracticableaftertheapplicationismade, the applicant must give the following
persons a noticecomplying with subsection (3)—(a)each other party to the
proceeding;(b)ifthecounsellortowhomtheprotectedcounsellingcommunicationrelatesisnotapartytotheproceeding—the counsellor.(3)For subsection (2), the notice is a
written notice stating—(a)an application
for leave under this subdivision has beenmadeinrelationtoaprotectedcounsellingcommunication;
and(b)adescriptionofthenatureandparticularsoftheprotectedcounsellingcommunication(otherthanparticularsdisclosingthecontentofthecommunication); and(c)ifthecounsellororcounselledpersontowhomthecommunicationrelatesisnotapartytotheproceeding—thatthecounsellororcounselledpersonmay
appear in the proceeding under section 14L.(4)Ifthecounselledpersonto
whomtheprotectedcounsellingcommunicationrelatesisnotapartytotheproceeding,theprosecutor must, as soon as practicable
after a notice is givenunder subsection (2), give the
counselled person a copy of thenotice.(5)The court can not decide the
application until at least 14 daysafter subsection
(2) is complied with.Current as at [Not applicable]Page
25
Notauthorised—indicativeonlyEvidence Act 1977Part 2
Witnesses[s 14H](6)However, the court may waive the requirement
to comply withsubsection (2) if, in relation to the
proceeding—(a)notice has been given of a previous
application for leaveunderthissubdivisionrelatingtothesameprotectedcounselling
communication; or(b)thecounselledpersontowhomtheprotectedcounselling
communication relates has consented to thewaiver of the
requirement; or(c)the court is satisfied—(i)exceptionalcircumstancesexistthatrequirethewaiver 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)ifthecounselledpersoncannotgivewrittenconsentbecause of a disability—orally.14HDeciding whether to grant leave(1)Thecourtcannotgrantanapplicationforleaveunderthissubdivision
unless the court is satisfied that—(a)the
protected counselling communication the subject ofthe
application will, by itself or having regard to otherdocumentsorevidenceproducedoradducedbytheapplicant, have substantial probative
value; and(b)other documents or evidence concerning
the matters towhich the communication relates are not
available; and(c)the public interest in admitting the
communication intoevidence substantially outweighs the public
interest in—(i)preservingtheconfidentialityofthecommunication; and(ii)protecting the counselled person from
harm.Page 26Current as at
[Not applicable]
Evidence Act 1977Part 2
Witnesses[s 14H]Notauthorised—indicativeonly(2)Indecidingthemattermentionedinsubsection(1)(c),thecourt must have regard to the
following matters—(a)the need to encourage victims of
sexual assault offencesto seek counselling;(b)thattheeffectivenessofcounsellingislikelytobedependentonmaintainingtheconfidentialityofthecounselling relationship;(c)the public interest in ensuring
victims of sexual assaultoffences receive effective
counselling;(d)thatdisclosureoftheprotectedcounsellingcommunicationislikelytodamagetherelationshipbetween the
counsellor and the counselled person;(e)whether disclosure of the communication is
sought onthe basis of a discriminatory belief or
bias;(f)thatthedisclosureofthecommunicationislikelytoinfringe a reasonable expectation of
privacy;(g)the extent to which the communication
is necessary toenable 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 writtenor oral
statement made to the court by the counselled personoutliningtheharmthepersonislikelytosufferiftheapplication is granted.(4)If an oral statement is made by the
counselled person undersubsection(3),whilethestatementisbeingmadethecourtmust 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 personbe excluded; and(ii)the
court considers excluding the essential personwouldserveaproperinterestofthecounselledperson.Current as at [Not applicable]Page
27
Notauthorised—indicativeonlyEvidence Act 1977Part 2
Witnesses[s 14I](5)The
court must not disclose, or make available to a party totheproceeding,astatementmadetothecourtundersubsection
(3).(6)Thecourtmuststateitsreasonsforgrantingorrefusingtogrant the application.(7)If
the proceeding is a trial by jury, the court must hear anddecide the application in the absence of the
jury.(8)In this section—harmincludesphysical,emotionalorpsychologicalharm,financial loss, stress or shock, and damage
to reputation.Subdivision 4Waiver or loss
of privilege14IWaiver of privilege by counselled
person(1)Thissectionapplies,inrelationtoaproceedingtowhichsubdivision2or3applies,ifadocumentorevidenceisaprotected counselling
communication.(2)This division does not prevent the
document being produced,ortheevidencebeingadduced,ifthecounselledpersontowhom the protected counselling
communication relates—(a)is 16 years or
more; and(b)consents to the production of the
document or adducingof the evidence; and(c)is not a person with an impaired
capacity for giving theconsent.(3)For
subsection (2)(b), the consent must—(a)expressly state the counselled
person—(i)consents to the production of a stated
document, orthe adducing of stated evidence, that is a
protectedcounselling communication relating to the
person;andPage 28Current as at
[Not applicable]
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Witnesses[s 14J](ii)has
had an opportunity to seek legal advice aboutgiving the
consent; and(b)be given—(i)in
writing; or(ii)ifthecounselledpersoncannotgivewrittenconsent because
of a disability—orally.(4)To remove any
doubt, it is declared that subsection (3)(b) doesnot
require the office of the director of public prosecutions togive
the counselled person legal advice.(5)In
this section—impaired capacitysee theGuardianshipandAdministrationAct 2000,
schedule 4.14JLoss of privilege if communication
made in commissionof offenceThis division
does not apply to a document or evidence that isa
protected counselling communication if the communicationwas
made in the commission of an offence.Subdivision
5General provisions14KCourt
to inform of rights(1)Thissectionappliesinrelationtoaproceedingtowhichsubdivision 2 or
3 applies if it appears to the court a personmay have grounds
for—(a)applying for leave under subdivision
3; or(b)objectingtotheproductionofadocument,ortheadducingofevidence,thatisaprotectedcounsellingcommunication.(2)The
court must satisfy itself the person is aware of the
relevantprovisions of this division and has had an
opportunity to seeklegal advice.Current as at
[Not applicable]Page 29
Evidence Act 1977Part 2
Witnesses[s 14L](3)If
the proceeding is a trial by jury, the court must satisfy
itselfof the matter under subsection (2) in the
absence of the jury.(4)To remove any
doubt, it is declared that subsection (2) doesnot require the
office of the director of public prosecutions togive
the person legal advice.Notauthorised—indicativeonly14LStanding of counsellor and counselled
person(1)This section applies if—(a)acounselledpersonorcounsellorisnotapartytoaproceeding to
which subdivision 2 or 3 applies; and(b)thecourtisdecidingwhetheradocumentorevidencerelatingtothecounselledpersonorcounsellorisaprotected counselling
communication.(2)Thecounselledpersonorcounsellormayappearintheproceeding, including any
appeal.14MDeciding whether document or evidence
is protectedcounselling communication(1)This section applies if a question
arises under this division inrelation to a
proceeding to which subdivision 2 or 3 applies.(2)Thecourtmayconsideradocumentorevidencetodecidewhether it is a
protected counselling communication.(3)While the court is considering the document
or evidence, thecourt 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)thecounselledpersontowhomthedocumentorevidencerelatesasksthattheessentialpersonbeexcluded; and(ii)the
court considers excluding the essential personwouldserveaproperinterestofthecounselledperson.Page
30Current as at [Not applicable]
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Witnesses[s 14N](4)The
court may make any other order it thinks fit to facilitateits
consideration of the document or evidence.(5)This
section applies despite sections 14D and 14F.Notauthorised—indicativeonly14NAncillary orders(1)A
court may make any order it considers appropriate to limitthe
extent of the harm likely to be caused to the counselledperson by the production of a document, or
the adducing ofevidence,thatisaprotectedcounsellingcommunicationrelating to the
person.Example—an order that
all or part of the evidence be heard, or the documentproduced, in camera(2)In
this section—harmsee section
14H.14OApplication of division despite
Justices Act 1886To the extent of an inconsistency, this
division applies despitea provision of theJustices Act
1886.14PApplication of
privilege in civil proceedings(1)This
section applies if, in a proceeding to which subdivision 2or3applies,aprotectedcounsellingcommunicationisprivileged under this division.Note—A protected
counselling communication is not privileged under thisdivision 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 adduceevidenceof,theprotectedcounsellingcommunicationinacivil proceeding arising from the act
or omission to which theproceeding mentioned in subsection (1)
relates.Current as at [Not applicable]Page
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Witnesses[s 15]Division 3Examination and cross-examinationof
witnesses15Questioning a person charged in a
criminal proceeding(1)Whereinacriminalproceedingapersonchargedgivesevidence, the
person shall not be entitled to refuse to answer aquestion or produce a document or thing on
the ground that todo so would tend to prove the commission by
the person ofthe offence with which the person is there
charged.(2)Whereinacriminalproceedingapersonchargedgivesevidence, the
person shall not be asked, and if asked shall notbe
required to answer, any question tending to show that theperson has committed or been convicted of or
been chargedwith any offence other than that with which
the person is therecharged, or is of bad character,
unless—(a)the question is directed to showing a
matter of which theproof is admissible evidence to show that
the person isguiltyoftheoffencewithwhichthepersonistherecharged;(b)the question is directed to showing a
matter of which theproofisadmissibleevidencetoshowthatanyotherperson charged
in that criminal proceeding is not guiltyoftheoffencewithwhichthatotherpersonistherecharged;(c)the person has personally or by
counsel asked questionsof any witness with a view to
establishing the person’sowngoodcharacter,orhasgivenevidenceoftheperson’s good
character, or the nature or conduct of thedefenceissuchastoinvolveimputationsonthecharacteroftheprosecutororofanywitnessfortheprosecutionorofanyotherpersonchargedinthatcriminal
proceeding;(d)the person has given evidence against
any other personcharged in that criminal proceeding.Page
32Current as at [Not applicable]
Evidence Act 1977Part 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)Iftheproceedingisatrialbyjury,anapplicationforthecourt’s permission under subsection
(3) must be made in theabsence of the jury.Notauthorised—indicativeonly15AQuestioning of witness as to certain
convictionsAwitnessinanycriminalorcivilproceedingshallnotbeaskedandifaskedshallnotberequiredtoansweranyquestion tending to show that the witness
has committed orbeen convicted of or been charged with any
offence if, wherethe witness has been convicted of the
offence—(a)the conviction is one in relation to
which a rehabilitationperiodiscapableofrunningpursuanttotheCriminalLaw
(Rehabilitation of Offenders) Act 1986; and(b)inrelationtotheconvictiontherehabilitationperiodwithin the meaning of that Act is not
running at the timeof the criminal or civil proceeding;unless the permission of the court to ask
the question has firstbeen obtained, such permission to be
applied for in a trial byjury in the absence of the
jury.16Witness may be questioned as to
previous convictionSubject to this Act, a witness may be
questioned as to whetherthewitnesshasbeenconvictedofanyindictableorotheroffenceanduponbeingsoquestioned,ifthewitnesseitherdenies the fact or refuses to answer, it
shall be lawful for theparty so questioning to prove such
conviction.17How far a party may discredit the
party’s own witness(1)A party producing a witness shall not
be allowed to impeachthe credit of the witness by general
evidence of bad characterbut may contradict the witness by
other evidence, or (in casethe witness in
the opinion of the court proves adverse) may byCurrent as at
[Not applicable]Page 33
Notauthorised—indicativeonlyEvidence Act 1977Part 2
Witnesses[s 18]leaveofthecourtprovethatthewitnesshasmadeatothertimes a
statement inconsistent with the present testimony ofthe
witness.(2)However, before such last mentioned
proof can be given, thecircumstancesofthesupposedstatementsufficienttodesignatetheparticularoccasionmustbementionedtothewitnessandthewitnessmustbeaskedwhetherornotthewitness has made such statement.18Proof of previous inconsistent
statement of witness(1)If a witness
upon cross-examination as to a former statementmadebythewitnessrelativetothesubjectmatteroftheproceeding and
inconsistent with the present testimony of thewitness does not
distinctly admit that the witness has madesuch statement,
proof may be given that the witness did in factmake it.(2)However, before such proof can be
given, the circumstancesof the supposed statement sufficient
to designate the particularoccasionmustbementionedtothewitnessandthewitnessmustbeaskedwhetherornotthewitnesshasmadesuchstatement.19Witness may be cross-examined as to written
statementwithout being shown it(1)A
witness may be cross-examined as to a previous statementmade
by the witness in writing or reduced into writing relativeto
the subject matter of the proceeding without such writingbeing shown to the witness.(1A)However,ifitisintendedtocontradictthewitnessbythewritingtheattentionofthewitnessmust,beforesuchcontradictory proof can be given, be called
to those parts ofthewritingwhicharetobeusedforthepurposeofsocontradicting the witness.(2)A court may at any time during the
hearing of a proceedingdirectthatthewritingcontainingastatementreferredtoinsubsection
(1)beproducedtothecourtandthecourtmayPage
34Current as at [Not applicable]
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Witnesses[s 20]make such use in
the proceeding of the writing as the courtthinks
fit.20Cross-examination as to credit(1)The court may disallow a question as
to credit put to a witnessin cross-examination, or inform the
witness the question neednot be answered, if the court
considers an admission of thequestion’s truth
would not materially impair confidence in thereliability of
the witness’s evidence.(2)In this
section—question as to credit, for a witness,
means a question that isnot relevant to the proceeding except
that an admission of thequestion’s truth may affect the
witness’s credit by injuring thewitness’s
character.21Improper questions(1)Thecourtmaydisallowaquestionputtoawitnessincross-examination or inform a witness
a question need not beanswered, if the court considers the
question is an improperquestion.(2)In
deciding whether a question is an improper question, thecourt must take into account—(a)anymental,intellectualorphysicalimpairmentthewitness has or appears to have; and(b)any other matter about the witness the
court considersrelevant, including, for example, age,
education, level ofunderstanding,culturalbackgroundorrelationshiptoany
party to the proceeding.(3)Subsection (2)
does not limit the matters the court may takeintoaccountindecidingwhetheraquestionisanimproperquestion.(4)In this section—Current as at
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Evidence Act 1977Part 2
Witnesses[s 21A]improper
questionmeans a question that uses
inappropriatelanguageorismisleading,confusing,annoying,harassing,intimidating,
offensive, oppressive or repetitive.Notauthorised—indicativeonlyDivision 4Evidence of
special witnesses21AEvidence of special witnesses(1)In this section—criminalorganisationseethePenaltiesandSentencesAct1992, section
161O.domesticviolenceseetheDomesticandFamilyViolenceProtection Act 2012, section
8.participant, in a criminal
organisation, see thePenalties andSentences Act
1992, section 161P.partyincludesapersonwhoispresentincourtandisamember, a
representative (other than a legal representative) ora
nominee of an organisation that is a party to the
proceeding.relevantmatter,foraperson,meanstheperson’sage,education,levelofunderstanding,culturalbackgroundorrelationship to any party to the proceeding,
the nature of thesubjectmatteroftheevidence,oranothermatterthecourtconsiders
relevant.serious criminal offencemeans—(a)anindictableoffencepunishablebyatleast7yearsimprisonment,
including anoffence against a repealedprovision of an Act; or(b)a
prescribed offence as defined under thePenalties
andSentences Act 1992, section 161N,
other than an offencementionedinparagraph(a),chargedwithacircumstance of aggravation stated in
section 161Q ofthat Act.sexual
offencemeans an offence of a sexual nature,
including,for example—Page 36Current as at [Not applicable]
Notauthorised—indicativeonlyEvidence Act 1977Part 2
Witnesses[s 21A](a)anoffenceagainstaprovisionoftheCriminalCode,chapter 32; and(b)anoffenceagainstaprovisionoftheCriminalCode,chapter 22.special
witnessmeans—(a)a
child under 16 years; or(b)a person who, in
the court’s opinion—(i)would,asaresultofamental,intellectualorphysical impairment or a relevant matter, be
likelyto be disadvantaged as a witness; or(ii)would be likely
to suffer severe emotional trauma;or(iii)wouldbelikelytobesointimidatedastobedisadvantaged as
a witness;if required to give evidence in accordance
with the usualrules and practice of the court; or(c)a person who is to give evidence about
the commissionof a serious criminal offence committed by a
criminalorganisation or a participant in a criminal
organisation;or(d)a person—(i)againstwhomdomesticviolencehasbeenorisalleged to have been committed by
another person;and(ii)who is to give
evidence about the commission ofan offence by
the other person; or(e)a person—(i)againstwhomasexualoffencehasbeen,orisallegedtohavebeen,committedbyanotherperson;
and(ii)who is to give
evidence about the commission ofan offence by
the other person.Current as at [Not applicable]Page
37
Evidence Act 1977Part 2
Witnesses[s 21A]Notauthorised—indicativeonly(1A)This section
does not apply to a child to the extent division 4Aapplies to the child.(1B)Apartytoaproceedingor,inacriminalproceeding,theperson charged may be a special
witness.(2)Where a special witness is to give or
is giving evidence in anyproceeding,thecourtmay,ofitsownmotionoruponapplication made
by a party to the proceeding, make or give 1or more of the
following orders or directions—(a)inthecaseofacriminalproceeding—thatthepersonchargedorotherpartytotheproceedingbeexcludedfromtheroominwhichthecourtissittingorbeobscured from the view of the special
witness while thespecialwitnessisgivingevidenceorisrequiredtoappear in court for any other
purpose;(b)that,whilethespecialwitnessisgivingevidence,allpersonsotherthanthosespecifiedbythecourtbeexcluded 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 specifiedby the court are
excluded;(d)that a person approved by the court be
present while thespecialwitnessisgivingevidenceorisrequiredtoappear in court for any other purpose
in order to provideemotional support to the special
witness;(e)thatavideorecordingoftheevidenceofthespecialwitnessoranyportionofitbemadeundersuchconditionsasarespecifiedintheorderandthatthevideorecordedevidencebeviewedandheardintheproceeding instead of the direct
testimony of the specialwitness;(f)anotherorderordirectionthecourtconsidersappropriate about the giving of evidence by
the specialwitness, including, for example, any of the
following—Page 38Current as at
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Evidence Act 1977Part 2
Witnesses[s 21A]Notauthorised—indicativeonly(i)adirectionaboutrestbreaksforthespecialwitness;(ii)a direction that
questions for the special witness bekept
simple;(iii)a direction that
questions for the special witness belimited by
time;(iv)adirectionthatthenumberofquestionsforaspecial witness on a particular issue
be limited.(4)Subject to any order made pursuant to
subsection (5), in anycriminal proceeding an order shall not
be made pursuant tosubsection (2)(a),(b)or(c)excludingthepersonchargedfrom
the room in which a special witness is giving evidenceunless provision is made, by means of an
electronic device orotherwise, for that person to see and
hear the special witnesswhile the special witness is giving
evidence.(5)Where the making of a videorecording
of the evidence of aspecialwitnessisorderedpursuanttosubsection (2)(e),thecourtmayfurtherorderthatallpersonsotherthanthosespecified by the court be excluded from the
room in which thespecial witness is giving that
evidence.(5A)However, any
person entitled in the proceeding to examine orcross-examine
the special witness shall be given reasonableopportunity to
view any portion of the videorecording of theevidencerelevanttotheconductofthatexaminationorcross-examination.(6)A
videorecording made under this section of evidence givenbyaspecialwitness,oralawfullyeditedcopyofthevideorecording—(a)is
as admissible as if the evidence were given orally inthe
proceeding in accordance with the usual rules andpractice of the court; and(b)is, unless the relevant court
otherwise orders, admissiblein—(i)anyrehearingorretrialof,orappealfrom,theproceeding; orCurrent as at
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Witnesses[s 21A](ii)inthecaseofevidencegivenforacriminalproceeding—(A)another proceeding in the same court for
therelevant charge or for another charge
arisingoutofthesame,orthesamesetof,circumstances; or(B)acivilproceedingarisingfromthecommission of the offence.(6A)A reference in
subsection (6) to a videorecording made underthissectionincludesareferencetoacopyofthevideorecording on a separate data
storage medium if—(a)the videorecording is a digital
recording; and(b)thecopyofthevideorecordingontheseparatedatastorage medium has been made by—(i)the principal registrar of a court;
or(ii)a person
authorised by the principal registrar of acourt to copy
the videorecording onto the separatedata storage
medium.(7)The room in which a special witness
gives evidence pursuantto an order made pursuant to
subsection (2)(c) or (e) shall bedeemedtobepartofthecourtinwhichtheproceedingisbeing held.(8)Ifevidenceisgiven,ortobegiven,inaproceedingonindictmentunderanorderordirectionmentionedinsubsection (2)(a) to (e), the judge
presiding at the proceedingmust instruct
the jury that—(a)they should not draw any inference as
to the defendant’sguilt from the order or direction;
and(b)the probative value of the evidence is
not increased ordecreased because of the order or direction;
and(c)theevidenceisnottobegivenanygreaterorlesserweight because
of the order or direction.Page 40Current as at
[Not applicable]
Notauthorised—indicativeonlyEvidence Act 1977Part 2
Witnesses[s 21AAA]21AAA Exclusion of
particular persons while videorecording orusable soundtrack
being presented(1)Thissectionappliesiftheevidenceofaspecialwitnesscontainedineitherofthefollowingistobepresentedataproceeding—(a)a
videorecording made under section 21A, or a lawfullyedited copy of the videorecording;(b)the usable soundtrack of a
videorecording, or a lawfullyeditedcopyofavideorecording,mentionedinparagraph(a),oralawfullyeditedcopyoftheusablesoundtrack.Note—See
part 2, division 4AA in relation to the use of soundtracksfrom
particular recordings.(2)The court may,
on its own initiative or on an application madeby a party to
the proceeding, order that, while the evidence isbeing presented at the proceeding, all
persons other than thosespecified by the court be excluded
from the room in which itis sitting.(3)However,iftheevidenceistobepresentedatacriminalproceeding, the court may not, under
subsection (2), excludethe person charged.Notes—1See
section 21A(2)(a) and (b), (4) and (5) in relation to the
court’spowertoexcludeparticularpersonswhileaspecialwitnessisgiving evidence under that
section.2See theChild Protection
Act 1999, section 193 for restrictions ondisclosing identifying information about a
special witness who is achild.Current as at
[Not applicable]Page 41
Evidence Act 1977Part 2
Witnesses[s 21AA]Division
4AEvidence of affected childrenNotauthorised—indicativeonlySubdivision 1Preliminary21AAPurposes of div 4AThe purposes of
this division are—(a)topreserve,tothegreatestextentpracticable,theintegrity of an affected child’s evidence;
and(b)to require, wherever practicable, that
an affected child’sevidence be taken in an environment that
limits, to thegreatest extent practicable, the distress
and trauma thatmightotherwisebeexperiencedbythechildwhengiving evidence.21ABHow
purposes are to be achievedToachievethepurposesofthisdivision,thedivisionprescribes the
following measures for an affected child whengiving evidence
for a relevant proceeding—(a)for a criminal
proceeding—(i)thechild’sevidenceistobeprerecordedinthepresence of a judicial officer, but in
advance of theproceeding;(ii)if
the measure in subparagraph (i) can not be giveneffect,thechild’sevidenceistobegivenattheproceeding, but with the use of an
audio visual linkor with the benefit of a screen;(iii)for a committal
proceeding, the child’s evidence-inchiefistobegivenonlyasastatementand,ordinarily, the
child is not to be called as a witnessfor
cross-examination;(b)for a civil proceeding, the child’s
evidence is to be givenat the proceeding with the use of an
audio visual link orwith the benefit of a screen.Page
42Current as at [Not applicable]
Evidence Act 1977Part 2
Witnesses[s 21AC]Notauthorised—indicativeonly21ACDefinitions for div 4AIn
this division—affected childmeans a child
who is a witness in a relevantproceeding and
who is not a defendant in the proceeding.childsee
section 21AD.civil proceeding arising from the commission
of a relevantoffencedoes not include
a proceeding for a domestic violenceorder under
theDomestic and Family Violence Protection
Act2012.counselincludes
solicitor.defendantmeans—(a)inacriminalproceeding—apersonchargedwithanoffence; or(b)in a
civil proceeding arising from the commission of arelevantoffence—apersonwhoseactoromissioniscomplained of.offence
involving violencemeans an offence against any ofthe
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 naturemeans an offence against any ofthe
following provisions of the Criminal Code—•a
provision of chapter 22•a provision of
chapter 32.parentageorderrelationshipmeansarelationshiparisingbecause of—(a)a
parentage order under theSurrogacy Act 2010; orCurrent as at [Not applicable]Page
43
Evidence Act 1977Part 2
Witnesses[s 21AC]Notauthorised—indicativeonlyPage 44(b)anorderofanotherAustralianjurisdictionthatcorresponds to a parentage order made under
that Act.preliminary hearingmeans a hearing
under section 21AK.prescribed relationship, between a
child who is a witness in aproceeding and a
defendant in the proceeding, means any ofthe
following—(a)arelationship,regardlessofwhetheritisahalf,adoptive, step or parentage order
relationship, where thedefendant 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)anuncle,aunt,nephew,nieceorcousinofthechild;(b)a
relationship arising because, at the time of the allegedoffencewithwhichthedefendantischarged,thedefendant lived in the same household as the
child;(c)a relationship arising because the
defendant had the careof, or exercised authority over, the
child in a householdon a regular basis.proceedingmeans any civil
or criminal proceeding, includinga preliminary
hearing.relevant offence, in relation to
a proceeding, means—(a)an offence of a
sexual nature; or(b)anoffenceinvolvingviolence,ifthereisaprescribedrelationshipbetweenachildwhoisawitnessintheproceeding and a
defendant in the proceeding.relevant
proceedingmeans—(a)a
criminal proceeding for a relevant offence, whether ornot
the proceeding also relates to other offences; or(b)acivilproceedingarisingfromthecommissionofarelevant offence.Current as at
[Not applicable]
Notauthorised—indicativeonlyEvidence Act 1977Part 2
Witnesses[s 21AD]steprelationshipincludesarelationshipcorrespondingtoastep relationship arising because of
cohabitation in a de factorelationshiporbecauseofafosterrelationshiporalegalarrangement.21ADMeaning ofchild(1)For the purposes of a proceeding for
this division, achildis—(a)if the proceeding is a criminal
proceeding—(i)an individual who is under 16 years
when the firstof the following happens—(A)the defendant in the proceeding is
arrested;(B)acomplaintismadeundertheJusticesAct1886, section 42 in
relation to the defendantin the proceeding;(C)a
notice to appear is served on the defendantintheproceedingunderthePolicePowersandResponsibilitiesAct2000,section 382;or(ii)an individual
who is 16 or 17 years when the firstofthemattersmentionedinsubparagraph(i)happens and who is a special witness;
or(b)if the proceeding is a civil
proceeding arising from thecommission of a
relevant offence—(i)anindividualwhoisunder16yearswhentheproceeding starts; or(ii)anindividualwhois16or17yearswhentheproceeding starts and who is a special
witness.(2)Anindividualremainsachildforthepurposesofgivingevidence for a
proceeding if the child gives evidence for theproceeding at
any time before the child turns 18 years.Current as at
[Not applicable]Page 45
Evidence Act 1977Part 2
Witnesses[s 21AE]Subdivision
2Committal proceedingNotauthorised—indicativeonly21AEApplication of
sdiv 2This subdivision applies to the taking of an
affected child’sevidence for a committal proceeding for a
relevant offence,whether or not the committal proceeding also
relates to otheroffences.21AFEvidence-in-chief(1)Theaffectedchild’sevidence-in-chiefmustbegivenasastatement without the child being
called as a witness.(2)For this
section, theJustices Act 1886, section 110A
applieswith all necessary changes and as though a
reference in thatsectiontoawrittenstatementincludedareferencetoastatementcontainedinadocumentasdefinedunderschedule 3.(3)Also,forthepurposesofapplyingtheJusticesAct1886,section 110A,thatsectionistobereadwiththefollowingchanges—(a)ifthechild’sstatementisawrittenstatement—subsections (4),
(5), (6), (6B), (8) and (9) of that sectionwere
omitted;(b)if the child’s statement is not a
written statement—(i)subsections (4), (5), (6), (6B), (6C),
(8) and (9) ofthat section were omitted; and(ii)in subsection
(13)—(A)thewords‘readasevidence’wereomittedandthewords‘receivedasevidence’wereinserted in their place; and(B)paragraph (a) were omitted.(4)Further, for the purposes of applying
theJusticesAct1886,section 111,thatsectionapplieswithallnecessarychangesandistobereadasthough,insubsections (1)and(2),thePage
46Current as at [Not applicable]
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Witnesses[s 21AG]words‘readasevidence’wereomittedandthewords‘received as
evidence’ were inserted in their place.(5)Inaddition,forthepurposesofapplyingtheCriminalLawAmendment Act 1892, section 4,
that section applies with allnecessary
changes and is to be read as though—(a)areferencetoadepositionincludedareferencetoastatement contained in a document;
and(b)a reference to the reading of a
deposition that is not awritten statement included a reference
to the showing ofa statement contained in a document.(6)In this section—statementmeans—(a)a
written statement; or(b)a statement
contained in a document.21AGCross-examination(1)The
affected child may be cross-examined only if, under thissection,amagistraterequiresapartytocallthechildasawitness for that purpose.(2)The requirement may be made, on an
application, by—(a)a magistrate at a direction hearing
under theJustices Act1886,
section 83A; or(b)the magistrate presiding at the
committal proceeding.(3)A magistrate at
a direction hearing must not require the childtobecalledasawitnessforcross-examinationunlessthemagistrate is satisfied that—(a)the party seeking to cross-examine the
child has—(i)identifiedanissuetowhichtheproposedquestioning
relates; and(ii)provided a
reason why the evidence of the child isrelevant to the
issue; andCurrent as at [Not applicable]Page
47
Evidence Act 1977Part 2
Witnesses[s 21AG]Notauthorised—indicativeonly(iii)explainedwhytheevidencedisclosedbytheprosecution does not address the
issue; and(iv)identified to
the magistrate the purpose and generalnatureofthequestionstobeputtothechildtoaddress the issue; and(b)the interests of justice can not
adequately be satisfied byleaving cross-examination of the child
about the issue tothe trial.(4)Themagistratepresidingatthecommittalproceedingmustnotrequirethechildtobecalledasawitnessforcross-examination unless the magistrate is
satisfied that—(a)theevidencebeforethecourtatthecommittalhasidentifiedanissuetowhichtheproposedquestioningrelates that
could not reasonably have been anticipatedbefore the
committal; and(b)the party making the application
has—(i)provided a reason why the evidence of
the child isrelevant to the issue; and(ii)explained why
the evidence before the court doesnot address the
issue; and(iii)identified to
the magistrate the purpose and generalnatureofthequestionstobeputtothechildtoaddress the issue; and(c)the interests of justice can not
adequately be satisfied byleaving cross-examination of the child
about the issue tothe trial.(5)Without limiting the matters to which the
magistrate may haveregard 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)musthaveregardtothevulnerabilityofchildren,thegeneralprinciplesstatedinsection 9EandthePage 48Current as at
[Not applicable]
Notauthorised—indicativeonlyEvidence Act 1977Part 2
Witnesses[s 21AG]undesirabilityofcallingachildasawitnessforacommittal proceeding.(6)The magistrate must give reasons for
the magistrate’s decisionon the application.(7)If, under this section, the magistrate
requires a party to call thechild as a
witness for cross-examination—(a)the
child’s evidence must be taken under subdivision 3or
4; and(b)whenthemagistratedecidestheapplication,themagistrate must decide whether the child’s
evidence isto be taken under subdivision 3 or under
subdivision 4,andhowitistobetaken,andgiveadirectionaccordingly.(8)In
deciding whether the child’s evidence is to be taken undersubdivision 3 or 4, and how it is to be
taken, the magistratemust have regard to the
following—(a)the distress or trauma likely to be
suffered by the childwhengivingevidenceandtheneedtominimisethechild’s distress or trauma;(b)whether a local court has an audio
visual link and, if not,theavailabilityofanotherappropriateplacewithappropriateequipmentandfacilitiesfortakingorvideorecording the child’s evidence under
subdivision 3or 4;(c)whetherthepartieswouldbesubstantiallyinconvenienced
if the proceeding were to be adjournedto another place
mentioned in paragraph (b) that is notwithin the same
locality as the court;(d)theneedforcommittalproceedingstobeconductedexpeditiously.(9)In
this section—local courtmeans—Current as at [Not applicable]Page
49
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Witnesses[s 21AH](a)in
relation to a magistrate at a direction hearing—a courtat
which the committal proceeding would ordinarily beheld; or(b)in
relation to the magistrate presiding at the committalproceeding—thecourtinwhichthecommittalproceedingisbeingheldoranothercourtwithinthecourt precincts.magistrate,presidingatacommittalproceeding,includesjustices presiding at the proceeding.21AHLimitation on cross-examination(1)If the affected child is to be
cross-examined, the party callingthe child may
first ask the child questions for identifying thechildandestablishingthatthechildmadethestatementmentionedinsection 21AFandthetruthfulnessofthestatement.(2)The
presiding magistrate or justices must not allow the childto
be cross-examined about an issue other than the issue inrelation to which the child was required to
be called unless themagistrateorjusticesaresatisfiedasmentionedinsection 21AG(3)(a)and(b)orsection
21AG(4)(a)to(c),whichever is
relevant, in relation to the issue.(3)Also, the presiding magistrate or
justices—(a)mustnotallowcross-examinationtocontinuetotheextent it—(i)doesnotappearrelevanttoanissueforwhichitmay
be conducted; or(ii)consists of
exploratory questions asked in the hopeofreceivinganyanswerofanyassistancetothepartyconductingthecross-examination,commonly known
as a ‘fishing expedition’; and(b)must
disallow a question that may be disallowed undersection 20 or 21.(4)The
child may be re-examined by the party calling the child.Page
50Current as at [Not applicable]
Notauthorised—indicativeonlySubdivision 3Evidence Act
1977Part 2 Witnesses[s 21AI]Prerecording of affected child’sevidence21AIApplication of sdiv 3(1)Thissubdivisionappliestotakinganaffectedchild’sevidence—(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 amagistrate or justices give a
direction as mentioned insection 21AG(7)(b)thatthechild’sevidenceistobetaken under this subdivision.(2)However, this subdivision does not
apply to an affected childwho is a witness for the
defence.(3)Subsection (1)appliestoaproceedingwhetherornottheproceedingalsorelatestooffencesotherthantherelevantoffence.21AJPresentation of indictmentIf
the affected child’s evidence is to be taken for a trial onindictment,theindictmentmustbepresentedbeforetheevidence can be taken under this
subdivision.21AKVideorecording of affected child’s
evidence(1)Theaffectedchild’sevidencemustbetakenandvideorecorded at a hearing under this
section (apreliminaryhearing)
presided over by a judicial officer.Note—See
section 21AO for when a court may order that an affected
child’sevidence not be taken and videorecorded
under this subdivision.(2)The
videorecording must be presented—Current as at
[Not applicable]Page 51
Evidence Act 1977Part 2
Witnesses[s 21AK]Notauthorised—indicativeonly(a)if taken for a
committal proceeding—to the court at thecommittal
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 thechild’s evidence
in a proceeding, the judicial officer may orderthatthepreliminaryhearingbeconductedbyaudiovisuallink.(4)The
provisions of part 3A relating to the use of an audio visuallink
in criminal proceedings apply for, and are not limited by,subsection (3).(5)To
facilitate the operation of this section for a trial, the
judicialofficer must, if it is not practicable at
the place of the trial totake and videorecord the child’s
evidence—(a)adjourn the trial to an appropriately
equipped place toallow the evidence to be taken and
videorecorded; or(b)makeanotherorderthejudicialofficerconsidersappropriateincluding,forexample,anorderthatthepreliminary hearing be conducted by
audio visual link.(6)Ifthetakingandvideorecordingofthechild’sevidenceisdone at a place that is not a
courtroom, the place is taken to bea courtroom for
all purposes for the preliminary hearing.(7)It
does not matter whether or not the judicial officer
presidingand the counsel appearing at the preliminary
hearing are thesamejudicialofficerpresidingandcounselappearingatanadjourned
preliminary hearing or at the proceeding in whichthe
videorecording is presented to the court.(8)Also, it does not matter if, while the
preliminary hearing isconducted, the judicial officer,
counsel, parties and witnessesare at different
places.Example—Tofacilitatethetakingandvideorecordingoftheaffectedchild’sevidence, the judicial officer directs that
the child give the evidence byaudiovisuallink.Thepreliminaryhearingisconductedwhilethejudicial officer, counsel and
defendant are in a courtroom in a particularcityandthechildisinaroominanothercityconnectedtothecourtroom through the audio visual
link.Page 52Current as at
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Witnesses[s 21AL](9)In
this section—appropriatelyequippedplace,forthetakingandvideorecording 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 thechild is giving evidence, for example,
through an audiovisual link.evidencemeansevidence-in-chieforevidencegivenincross-examination or
re-examination.21ALCourt to give directions for taking an
affected child’sevidence(1)The
judicial officer presiding at the preliminary hearing maymake
any order the judicial officer considers appropriate inrelationtotakingandvideorecordingtheaffectedchild’sevidence.(2)Without limiting subsection (1), the
judicial officer may givedirections, with or without
conditions, as to the conduct of thepreliminary
hearing, including directions as to—(a)whether the child is to be in the courtroom
or a separateroom when the child’s evidence is being
taken; and(b)the persons who may be present in the
same room as thechild 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 anaffectedchildwitnessisgivingevidenceinrelationtoarelevantoffence.(4)At the preliminary hearing—(a)the defendant—Current as at
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Witnesses[s 21AM](i)must
not be in the same room as the child when thechild’s evidence
is being taken; but(ii)mustbecapableofseeingandhearingthechildwhile the child
is giving evidence; and(b)subjecttothejudicialofficer’scontrol,thechildistogive his or her evidence-in-chief and
be cross-examinedand re-examined; and(c)except as provided by this subdivision, the
usual rules ofevidence apply.(5)The
judicial officer may adjourn the hearing from time to timeuntil the taking and videorecording of the
child’s evidence iscomplete.21AMUse
of prerecorded evidence(1)The affected
child’s evidence contained in a videorecordingmade under this
subdivision for a proceeding, or in a lawfullyedited copy of
the videorecording—(a)is as admissible as if the evidence
were given orally inthe proceeding in accordance with the
usual rules andpractice of the court; and(b)is, unless the relevant court
otherwise orders, admissiblein—(i)anyrehearingorretrialof,orappealfrom,theproceeding; or(ii)anotherproceedinginthesamecourtfortherelevant charge
or for another charge arising out ofthe same, or the
same set of, circumstances; or(iii)a
civil proceeding arising from the commission ofthe relevant
offence.(2)Theadmissibilityoftheevidenceforaproceedingisnotaffected only because the child turns
18 before the evidence ispresented at the proceeding.Page
54Current as at [Not applicable]
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Witnesses[s 21AN](3)A
reference in subsection (1) to a videorecording made underthissubdivisionforaproceedingincludesareferencetoacopy of the videorecording on a
separate data storage mediumif—(a)the videorecording is a digital
recording; and(b)thecopyofthevideorecordingontheseparatedatastorage medium has been made by—(i)the principal registrar of a court;
or(ii)a person
authorised by the principal registrar of acourt to copy
the videorecording onto the separatedata storage
medium.21ANGiving of further evidence(1)This section applies if the affected
child has given evidenceunder this subdivision for a
proceeding and has been excusedfrom 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 anotherpreliminary 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 theordinary way,
the child could be recalled to give furtherevidence;
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 theproceeding to
give further evidence unless satisfied it is notpossibleornotpracticalforthechildtogivethefurtherevidence at
another preliminary hearing.Current as at
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Witnesses[s 21AO]21AOCourt
order that evidence not to be taken and recordedunder
this sdiv(1)This section applies if an affected
child is to give evidence in acriminal
proceeding, other than a committal proceeding, for arelevant offence.(2)A
party may apply to the court for an order that the child’sevidencenotbetakenandvideorecordedunderthissubdivision.(3)The
court may make the order for good reason, having regardto
the child’s wishes and the purposes of this division.Example—If a courtroom
or other place with facilities to take and videorecord theaffectedchild’sevidenceisnotlikelytobeavailablewithinareasonable time, the court may decide
the child’s interests are betterserved by
dealing with the proceeding quickly rather than waiting for
acourtroomor