Waiver of evidence

Question 1

How the rules of evidence are waived?

Answer 1

With the consent of parties + a court ruling

Question 2

What rules of evidence can be waived?

Answer 2

• Part 2.1
  o Division 3 – General rules about giving evidence (s26 – s36);
  o Division 4 – Examination in chief and re-examination (s37 – s39);
  o Division 5 – Cross examination (s40 – s46);
• Part 2.2 – Documents (s47 – s51);
• Part 2.3 – Other evidence (including views) (s52 – s54);
• Parts 3.2 – 3.8 (including Hearsay, Opinion, Admissions, Evidence of Judgments and Convictions, Tendency and Coincidence, Credibility, and Character) (s59 – s112).

Question 3

What rules of evidence CANNOT be waived?

Answer 3

there are some rules, such as the prohibition on calling the accused in criminal proceedings, that cannot be waived.

Question 4

What happens if a rule that cannot be waived, is allowed to be waived?

Answer 4

A court that permits a party to breach these rules falls into jurisdictional error by failing to observe the limits on its powers (Kirk)

Question 5

Matters that the court must consider before ruling on waiver?

Answer 5

Before waiving a rule of evidence under s190(3), a court must consider the following matters:
* The importance of the evidence; and
* The nature of the cause of action or defence, and the nature of the subject-matter of the proceeding; and
* The probative value of the evidence; and
* Any powers of the court to adjourn the hearing, to make another order or to give a direction in relation to the evidence