Evidence Act 2011 - ACT Legislation Register

Australian Capital TerritoryEvidence Act 2011A2011-12Republication No 11Effective: 1 September 2020Republication date: 1 September 2020Last amendment made by A2020-31Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au

About this republicationThe republished lawThis is a republication of the Evidence Act 2011 (including any amendment made under theLegislation Act 2001, part 11.3 (Editorial changes)) as in force on 1 September 2020. It alsoincludes any commencement, amendment, repeal or expiry affecting this republished law to1 September 2020.The legislation history and amendment history of the republished law are set out in endnotes 3and 4.Kinds of republicationsThe Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACTlegislation register at www.legislation.act.gov.au): authorised republications to which the Legislation Act 2001 applies unauthorised republications.The status of this republication appears on the bottom of each page.Editorial changesThe Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorialamendments and other changes of a formal nature when preparing a law for republication.Editorial changes do not change the effect of the law, but have effect as if they had been made byan Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). Thechanges are made if the Parliamentary Counsel considers they are desirable to bring the law intoline, or more closely into line, with current legislative drafting practice.This republication does not include amendments made under part 11.3 (see endnote 1).Uncommenced provisions and amendmentsIf a provision of the republished law has not commenced, the symbol U appears immediatelybefore the provision heading. Any uncommenced amendments that affect this republished laware accessible on the ACT legislation register (www.legislation.act.gov.au). For moreinformation, see the home page for this law on the register.ModificationsIf a provision of the republished law is affected by a current modification, thesymbol M appears immediately before the provision heading. The text of the modifyingprovision appears in the endnotes. For the legal status of modifications, see the LegislationAct 2001, section 95.PenaltiesAt the republication date, the value of a penalty unit for an offence against this law is 160 for anindividual and 810 for a corporation (see Legislation Act 2001, s 133).Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au

Australian Capital TerritoryEvidence Act 2011ContentsPageChapter 1PreliminaryPart 1.1Formal matters133A3BPart 1.245678R1101/09/20Name of ActDictionaryNumberingNotes2233Application of this ActCourts and proceedings to which Act appliesExtended application of certain provisionsTerritoriesAct binds CrownOperation of other ActsEvidence Act 2011Effective: 01/09/20Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au45555contents 1

ContentsPage8A91011Offences against Act—application of Criminal Code etcApplication of common law and equityParliamentary privilege preservedGeneral powers of a courtChapter 2Giving and presenting evidencePart 2.1Witnesses6677Division 2.1.1Competence and compellability of witnesses12Competence and compellability13Competence—lack of capacity14Compellability—reduced capacity15Compellability—Sovereign and others16Competence and compellability—judges and jurors17Competence and compellability—defendants in criminal proceedings18Compellability of domestic partners and others in criminal proceedingsgenerally19Compellability of domestic partners and others in certain criminalproceedings20Comment on failure to give evidence8810101111121314Division 2.1.2Oaths and affirmations21Sworn evidence of witnesses to be on oath or affirmation22Interpreters and intermediaries to act on oath or affirmation23Choice of oath or affirmation24Requirements for oaths24AAlternative oath1516161717Division 2.1.3General rules about giving evidence26Court’s control over questioning of witnesses27Parties may question witnesses28Order of examination-in-chief, cross-examination and re-examination29Manner and form of questioning witnesses and their responses30Interpreters31Deaf and mute witnesses32Attempts to revive memory in court17181818181919contents 2Evidence Act 2011Effective: 01/09/20Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.auR1101/09/20

ContentsPage33343536Evidence given by police officersAttempts to revive memory out of courtEffect of calling for production of documentsPerson may be examined without subpoena or other process20212121Division 2.1.4Examination-in-chief and re-examination37Leading questions38Unfavourable witnesses39Limits on re-examination222324Division 2.1.5Cross-examination40Witness called in error41Improper questions42Leading questions43Prior inconsistent statements of witnesses44Previous representations of other people45Production of documents46Leave to recall witnesses25252728282930Part 2.24748495051DocumentsDefinitions—pt 2.2Proof of contents of documentsDocuments in foreign countriesProof of voluminous or complex documentsOriginal document rule abolishedPart 2.3525354Other evidencePresenting of other evidence not affectedViewsViews to be evidenceChapter 3Admissibility of evidencePart 3.1Relevance5556R1101/09/203131333434Relevant evidenceRelevant evidence to be admissibleEvidence Act 2011Effective: 01/09/20Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au3535363939contents 3

ContentsPage5758Part 3.2Provisional relevanceInferences as to relevance3940HearsayDivision 3.2.1The hearsay rule59The hearsay rule—exclusion of hearsay evidence60Exception—evidence relevant for a non-hearsay purpose61Exceptions to the hearsay rule dependent on competency414343Division 3.2.2First-hand hearsay62Restriction to first-hand hearsay63Exception—civil proceedings if maker not available64Exception—civil proceedings if maker available65Exception—criminal proceedings if maker not available66Exception—criminal proceedings if maker available66AException—contemporaneous statements about a person’s health etc67Notice to be given68Objections to tender of hearsay evidence in civil proceedings if makeravailableDivision 3.2.3Other exceptions to the hearsay rule69Exception—business records70Exception—contents of tags, labels and writing71Exception—electronic communications72Exception—Aboriginal and Torres Strait Islander traditional laws andcustoms73Exception—reputation as to relationships and age74Exception—reputation of public or general rights75Exception—interlocutory proceedingsPart 3.376777878A79contents 4444445464950505152545455555656OpinionThe opinion ruleException—evidence relevant otherwise than as opinion evidenceException—lay opinionsException—Aboriginal and Torres Strait Islander traditional laws andcustomsException—opinions based on specialised knowledgeEvidence Act 2011Effective: 01/09/20Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au5758585859R1101/09/20

ContentsPage80Part 3.481828384858687888990Part 3.5919293Part 3.69495969797A9899100101R1101/09/20Ultimate issue and common knowledge rules abolished59AdmissionsHearsay and opinion rules—exception for admissions and relatedrepresentationsExclusion of evidence of admissions that is not first-handExclusion of evidence of admissions as against third partiesExclusion of admissions influenced by violence and certain otherconductCriminal proceedings—reliability of admissions by defendantsExclusion of records of oral questioningAdmissions made with authorityProof of admissionsEvidence of silenceDiscretion to exclude admissions60616162626364646565Evidence of judgments and convictionsExclusion of evidence of judgments and convictionsExceptionsSavings666667Tendency and coincidenceApplication—pt 3.6Use of evidence for other purposesFailure to actThe tendency ruleAdmissibility of tendency evidence in proceedings involving childsexual offencesThe coincidence ruleRequirements for noticesCourt may dispense with notice requirementsFurther restrictions on tendency evidence and coincidence evidencepresented by prosecutionEvidence Act 2011Effective: 01/09/20Authorised by the ACT Parliamentary Counsel—also accessible at ts 5

ContentsPagePart 3.7CredibilityDivision 3.7.1Credibility evidence101ACredibility evidence75Division 3.7.2Credibility of witnesses102The credibility rule103Exception—cross-examination as to credibility104Further protections—cross-examination as to credibility106Exception—rebutting denials by other evidence108Exception—re-establishing credibility7676777879Division 3.7.3Credibility of people who are not witnesses108AAdmissibility of evidence of credibility of person who has made aprevious representation108BFurther protections—previous representations of an accused who isnot a witnessDivision 3.7.4People with specialised knowledge108CException—evidence of people with specialised knowledgePart 3.810911011111281Application—pt 3.8Evidence about character of accused peopleEvidence about character of co-accusedLeave required to cross-examine about character of accused or coaccused83838384Identification evidenceApplication—pt 3.9Exclusion of visual identification evidenceExclusion of evidence of identification by picturesDirections to juryPart 3.1085858789PrivilegesDivision 3.10.1Client legal privilege117Definitions—div 3.10.1118Legal advice119Litigationcontents 680CharacterPart 3.911311411511679Evidence Act 2011Effective: 01/09/20Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au909292R1101/09/20

ContentsPage120121122123124125126Unrepresented partiesLoss of client legal privilege—generallyLoss of client legal privilege—consent and related mattersLoss of client legal privilege—defendantsLoss of client legal privilege—joint clientsLoss of client legal privilege—misconductLoss of client legal privilege—related communications and documents93939495969697Division 3.10.1AProfessional confidential relationship privilege126ADefinitions—div 3.10.1A126BExclusion of evidence of protected confidences126CLoss of professional confidential relationship privilege—consent126DLoss of professional confidential relationship privilege—misconduct126EAncillary orders126FApplication—div 3.10.1A9899101101101102Division 3.10.1CJournalist privilege126JDefinitions—div 3.10.1C126KJournalist privilege relating to informant’s identity126LApplication—div 3.10.1C103103104Division 3.10.2Other privileges127Religious confessions128Privilege in relation to self-incrimination in other proceedings128APrivilege in relation to self-incrimination—exception for certain ordersetc104105109Division 3.10.3Evidence excluded in the public interest129Exclusion of evidence of reasons for judicial etc decisions130Exclusion of evidence of matters of state131Exclusion of evidence of settlement negotiations112113115Division 3.10.4General131AApplication of div 3.10.4 to preliminary proceedings of courts132Court to inform of rights to make applications and objections133Court may inspect etc documents134Inadmissibility of evidence that must not be presented or given118119119120R1101/09/20Evidence Act 2011Effective: 01/09/20Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.aucontents 7