Evidence Act

Question 1

S4 - 11 Evidence Act

Answer 1

Application of the act

Question 2

Section 12 Evidence Act

Answer 2

Competence and compellability
Except as otherwise provided by this Act–

(a) every person is competent to give evidence, and
(b) a person who is competent to give evidence about a fact is compellable to give that evidence.

Question 3

Section 13 Evidence Act

Answer 3

Competence: lack of capacity
(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability)–
(a) the person does not have the capacity to understand a question about the fact, or
(b) the person does not have the capacity to give an answer that can be understood to a question about the fact,
and that incapacity cannot be overcome.

Question 4

Section 21 Evidence Act

Answer 4

Sworn evidence to be on oath or affirmation

(1) A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence.

Question 5

Section 33 Evidence Act

Answer 5

Evidence given by police officers

(1) Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer.
(2) Evidence may not be so given unless–
(a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers, and
(b) the police officer signed the statement when it was made, and
(c) a copy of the statement had been given to the person charged or to his or her Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution.
(3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer.

Question 6

Section 55 Evidence Act

Answer 6

55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to–
(a) the credibility of a witness, or
(b) the admissibility of other evidence, or
(c) a failure to adduce evidence.

Question 7

Section 59 Evidence Act

Answer 7

The hearsay rule–exclusion of hearsay evidence
59 The hearsay rule–exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

Question 8

Section 60 Evidence Act

Answer 8

60 Exception: evidence relevant for a non-hearsay purpose
(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)).
Note : Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen(1998) 195 CLR 594 .
(3) However, this section does not apply in a criminal proceeding to evidence of an admission.
The admission might still be admissible under section 81 as an exception to the hearsay rule if it is “first-hand” hearsay: see section 82.

Question 9

Section 62 Evidence Act

Answer 9

62 Restriction to “first-hand” hearsay

(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

Question 10

Section 65-66 Evidence Act

Answer 10

Maker not available/Maker Available

Question 11

Section 66A Evidence Act

Answer 11

Contemporaneous statements about a persons health etc

Question 12

Section 76 Evidence Act

Answer 12

76 The opinion rule

(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
(2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

Question 13

Section 77 Evidence Act

Answer 13

Exception: evidence relevant otherwise than as opinion evidence
77 Exception: evidence relevant otherwise than as opinion evidence
The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.

Question 14

Section 78 Evidence Act

Answer 14

78 Exception: lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if–

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

Question 15

Section 79 Evidence Act

Answer 15

79 Exception: opinions based on specialised knowledge
(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

Question 16

Section 81 - 90 Evidence Act

Answer 16

Admissions

Question 17

Section 81 Evidence Act

Answer 17

Hearsay and opinion rules: exception for admissions and related representations

Hearsay and opinion rules: exception for admissions and related representations
81 Hearsay and opinion rules: exception for admissions and related representations
(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.
(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation–
(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and
(b) to which it is reasonably necessary to refer in order to understand the admission.

Question 18

Section 82 Evidence Act

Answer 18

Exclusion of evidence of admissions that is not first-hand

82 Exclusion of evidence of admissions that is not first-hand
Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless–

(a) it is given by a person who saw, heard or otherwise perceived the admission being made, or
(b) it is a document in which the admission is made.

Question 19

Section 83 Evidence Act

Answer 19

Exclusion of evidence of admissions as against third parties

(1) Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party.
(2) The evidence may be used in respect of the case of a third party if that party consents.
(3) Consent cannot be given in respect of part only of the evidence.

Question 20

Section 84 Evidence Act

Answer 20

Exclusion of admissions influenced by violence and certain other conduct

(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by–
(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or
(b) a threat of conduct of that kind.

Question 21

Section 85 Evidence Act

Answer 21

Criminal proceedings: reliability of admissions by defendants
(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant–
(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or
(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
Note : Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen(2004) 218 CLR 216 .
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account–
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and
(b) if the admission was made in response to questioning–
(i) the nature of the questions and the manner in which they were put, and
(ii) the nature of any threat, promise or other inducement made to the person questioned.

Question 22

Section 86 Evidence Act

Answer 22

Exclusion of records of oral questioning

(1) This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official.
(2) A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response.
(3) The acknowledgement must be made by signing, initialling or otherwise marking the document.
(4) In this section–

“document” does not include–

(a) a sound recording, or a transcript of a sound recording, or
(b) a recording of visual images and sounds, or a transcript of the sounds so recorded.

Question 23

Section 87 Evidence Act

Answer 23

Admissions made with authority

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that–
(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or
(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority, or
(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

Question 24

Section 88 Evidence Act

Answer 24

Proof of admissions
For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.

Question 25

Section 89 Evidence Act

Answer 25

Evidence of silence generally
(1) Subject to section 89A, in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused–
(a) to answer one or more questions, or
(b) to respond to a representation,
put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.
(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.

Question 26

Section 90 Evidence Act

Answer 26

Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if–

(a) the evidence is adduced by the prosecution, and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Question 27

Section 91 Evidence Act

Answer 27

Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

Question 28

Section 97 Evidence Act

Answer 28

The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless–
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Question 29

Section 97A Evidence Act

Answer 29

Admissibility of tendency evidence in proceedings involving child sexual offences

(1) This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue.
(2) It is presumed that the following tendency evidence about the defendant will have significant probative value for the purposes of sections 97(1)(b) and 101(2)–
(a) tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest),
(b) tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.

Question 30

Section 98 Evidence Act

Answer 30

The coincidence rule

(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless–
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Question 31

Section 141 Evidence Act

Answer 31

Criminal proceedings: standard of proof
(1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.