Evidence Act 2011

This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

evidence in relation to which part 3.2 (Hearsay) or part 3.4 (Admissions) applies;

identification evidence;

evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;

evidence given in a criminal proceeding by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;

evidence given in a criminal proceeding by a witness who is a prison informer;

oral evidence of questioning by an investigating official of a defendant that is recorded in writing and has not been signed, or otherwise acknowledged in writing, by the defendant;

in a proceeding against the estate of a deceased person—evidence presented by or on behalf of a person seeking relief in the proceeding about a matter about which the deceased person could have given evidence if the deceased person were alive.

If there is a jury and a party requests, the judge must—

warn the jury that the evidence may be unreliable; and

tell the jury about matters that may cause it to be unreliable; and

warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it.

The judge need not comply with subsection (2) if there are good reasons for not doing so.

It is not necessary that a particular form of words be used in giving the warning or information.

This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

Subsection (2) does not permit a judge to warn or tell a jury in proceedings before it in which a child gives evidence that the reliability of the child’s evidence may be affected by the age of the child.

Any warning or information in relation to that matter may be given only in accordance with section 165A (2) and (3).