Evidence Act 2011

This Act is the Evidence Act 2011.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘Commonwealth record—see the Evidence Act 1995 (Cwlth), dictionary.’ means that the term ‘Commonwealth record’ is defined in that dictionary and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

Note 3 This section differs from the Commonwealth Act and NSW Act.

To maintain consistent section numbering between this Act and the Commonwealth Act—

if the Commonwealth Act contains a section that is not included in this Act—the section number and heading appearing in the Commonwealth Act are included in this Act despite the omission of the body of the section; and

if this Act contains a section that is not included in the Commonwealth Act—the section is numbered so as to maintain consistency in numbering between sections common to both Acts.

A section number and heading mentioned in subsection (1) (a) form part of this Act.

If a provision of this Act (other than a section) is numbered differently from the equivalent provision of the Commonwealth Act, the provision of this Act may be referred to using the number of the equivalent provision of the Commonwealth Act.

Note 1 A note appears under each heading mentioned in s (1) (a) describing the omitted section of the Commonwealth Act.

Note 2 A note appears under each section mentioned in s (1) (b) highlighting the non-appearance of an equivalent section in the Commonwealth Act.

Note 3 The Commonwealth Act and NSW Act do not include this section.

A note included in this Act is explanatory and is not part of this Act.

Note 1 See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Note 2 The Commonwealth Act and NSW Act do not include this section.

Part 1.2 Application of this Act

This Act applies to all proceedings in an ACT court, including proceedings that—

relate to bail; or

are interlocutory proceedings or proceedings of a similar kind; or

are heard in chambers; or

subject to subsection (2), relate to sentencing.

If a proceeding relates to sentencing—

this Act applies only if the court directs that the law of evidence applies in the proceeding; and

if the court states in the direction that the law of evidence applies only in relation to stated matters—the direction has effect accordingly.

The court must make a direction under this section if—

a party to the proceeding applies for the direction in relation to the proof of a fact; and

in the court’s opinion, the proceeding involves proof of the fact, and the fact is or will be significant in deciding a sentence to be imposed in the proceeding.

The court must make a direction under this section if the court considers it appropriate in the interests of justice.

Note This section differs from the Commonwealth Act, s 4.

Note The Commonwealth Act includes a provision extending the application of stated provisions of the Commonwealth Act to proceedings in all Australian courts.

Note The Commonwealth Act includes a provision extending that Act to each external territory.

Note The Commonwealth Act and NSW Act include a provision binding the Crown. The provision is unnecessary in the ACT (see Legislation Act, s 121).

This Act does not affect the operation of the provisions of any other Act.

Examples

1 Bail Act 1992, s 19 (2)

2 Evidence (Miscellaneous Provisions) Act 1991, ch 5

Note This section differs from the Commonwealth Act, s 8. Differences include additional subsections relating to the operation of the Corporations Act and the Australian Securities and Investments Commission Act 2001 (Cwlth).

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

Note 3 This section differs from the Commonwealth Act, s 8A.

This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.

Without limiting subsection (1), this Act does not affect the operation of a principle or rule mentioned in subsection (1) so far as it relates to any of the following:

admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to the decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of a court;

the operation of a legal or evidential presumption that is not inconsistent with this Act;

a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.

Note This section differs from the Commonwealth Act, s 9. That section preserves the written and unwritten laws of States and Territories in relation to certain matters.

This Act does not affect the law relating to the privileges of any Australian Parliament or any house of any Australian Parliament.

In particular, section 15 (2) (Compellability—Sovereign and others) does not affect, and is in addition to, the law relating to those privileges.