Evidence Act 1929

In this Act, unless some other intention is expressed, or implied by the context—

the

a person or body prescribed by the regulations, as a canine court companion;

a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder);

an acquired disability as a result of illness or injury (including, for

a mental illness;

attempted murder; or

attempted manslaughter; or

a sexual offence; or

—

an offence of stalking and harassment under section 19AA of the

an offence of causing serious harm under section 23 of the Criminal

an offence involving an unlawful threat to kill or endanger life; or

an offence involving abduction; or

an offence involving blackmail; or

an attempt to commit, or assault with intent to commit, any of the offences in the preceding subparagraphs;

rape;

compelled sexual manipulation; or

indecent assault; or

any offence involving unlawful sexual intercourse or an act of gross indecency; or

incest;

any offence involving sexual exploitation or abuse of a child, or exploitation of a child as an object of prurient interest; or

an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal

any attempt to commit, or assault with intent to commit, any of the foregoing offences;

a witness who is under 16 years of age; or

a witness who is cognitively impaired; or

a witness who is the alleged victim of an offence to which the proceedings relate—

where the offence is a serious offence against the person; or

in any other case—where, because of the circumstances of the witness or the circumstances of the case, the witness would, in the opinion of the court, be specially disadvantaged if not treated as a vulnerable witness; or

a witness who—

has been subjected to threats of violence or retribution in connection with the proceedings; or

has reasonable grounds to fear violence or retribution in connection with the proceedings; or

in the case of proceedings for a serious and organised crime offence (within the meaning of the Criminal

For the purposes of this Act, a witness who is to give oral evidence in proceedings will be taken to have complex communication needs if the witness's ability to give the evidence is significantly affected by a difficulty to communicate effectively with the court, whether the communication difficulty is temporary or permanent and whether caused by disability, illness, injury or some other cause.

However, a witness who is to give oral evidence in proceedings whose native language is not English will not be taken to have complex communication needs merely because the witness is not reasonably fluent in English (although the witness may be entitled to give the evidence through an interpreter under section 14).

apply to every proceeding before any court whatever; and

are in addition to, and not in derogation of, any rules of evidence, or power, or right, or duty in relation to procedure or evidence, whether existing at common law, or provided for by any law, at any time, in force in the State.

An oath shall be administered and taken as follows:

the person taking the oath shall hold a copy of the Bible (being a book that contains the New Testament, the Old Testament or both) in his hand and, after the oath has been tendered to him, shall say "I swear"; or

in any other manner and form which the person taking the oath declares to be binding on his conscience; or

in any other manner or form authorised or permitted by law.

Where an oath has been lawfully administered and taken, the fact that the person taking the oath had no religious belief, or that the oath was not taken so as to be binding on his conscience, shall not affect, at law, the validity or effect of the oath.

A person is permitted, and should be offered the choice, to make an affirmation instead of an oath in all circumstances in which, and for all purposes for which, an oath is required or permitted by law.

An affirmation is to be administered to a person by asking the person

Every affirmation has, at law, the same force and effect as an oath.

No oath or affirmation is invalid by reason of a procedural or formal error or deficiency.

Every court has authority to administer an oath or an affirmation.

Where an oath or affirmation is to be taken before a court, or in connection with proceedings before a court, it may be administered by—

the court itself; or

an officer of the court; or

any person authorised by the court to administer the oath or affirmation;

any other person authorised by law to administer the oath or affirmation.

A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.

If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—

the judge—

is satisfied that the person understands the difference between the truth and a lie; and

tells the person that it is important to tell the truth; and

the person indicates that he or she will tell the truth.

In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.

If unsworn evidence is given under this section in a criminal trial, the judge—

must explain to the jury the reason the evidence is unsworn; and

may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

A justice to whom it appears that a person who desires to lay a complaint or information does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence may ascertain by inquiry the subject matter of the complaint or information and reduce it into the appropriate form, and any action or proceedings may be taken on the complaint or information in all respects as if the complainant or informant had deposed to the truth of the contents on oath or affirmation.

Subject to this Act, this section does not apply to a statement made outside of a court admitted as evidence in any proceedings under an exception to the rule against hearsay at common law or under this Act.

A young child who is called as a witness is, while giving evidence, entitled to have present in the court, and within reasonable proximity, a person of his or her choice to provide emotional support (but the person must not interfere in the proceedings).

Unless the court otherwise allows, a witness or prospective witness in the proceedings cannot be chosen under subsection (4) to provide emotional support for a young child.

In a criminal trial, a judge must not warn the jury that it is unsafe to convict on a child's uncorroborated evidence unless—

the warning is warranted because there are, in the circumstances of the particular case, cogent reasons, apart from the fact that the witness is a child, to doubt the reliability of the child's evidence; and

a party asks that the warning be given.

In giving any such warning, the judge is not to make any suggestion that the evidence of children is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults.

Subject to this section, if—

the evidence of a witness to whom this section applies is necessary for the purposes of the trial of a charge of an offence to which this section applies; and

the facilities necessary to take the evidence of the witness are readily available to the court and it is otherwise practicable to make arrangements for a special hearing to be convened as a proceeding preliminary to the trial (a pre‑trial special hearing);

the arrangements can be made without prejudice to any party to the proceedings, the court should, on application under this section, order that arrangements be made relating to the giving of evidence by the witness at a pre‑trial special hearing.

An order for a pre‑trial special hearing—

must make provision for each of the following matters:

that a hearing be convened as a proceeding preliminary to the trial of the charge of the offence for the purpose of taking the evidence of the witness in any setting that the court thinks fit in the circumstances (including an informal setting);

if the witness has a physical disability or cognitive impairment—that the evidence be taken in a particular way (to be specified by the court) that will, in the court's opinion, facilitate the taking of evidence from the witness or minimise the witness's embarrassment or distress (including, if the witness has complex communication needs, with such communication assistance as may be specified by the court);

that an audio visual record of the evidence be made;

that the taking of evidence at the hearing be transmitted to the defendant by means of closed circuit television;

if the defendant attends the hearing in person—that appropriate measures be taken to prevent the witness and the defendant from directly seeing or hearing each other before, during or after the hearing; and

may make provision for the witness to be accompanied at the hearing by a relative, friend or other person, or by a canine court companion, for the purpose of providing emotional support; and

may specify that the hearing is convened for any (or all) of the following purposes:

examination of the witness;

cross‑examination of the witness;

re‑examination of the witness; and

may specify that the hearing include an initial hearing for the purpose of taking any evidence (if required), hearing submissions and making rulings as to the admissibility of any evidence and a subsequent hearing (or hearings) for the examination, cross‑examination or re‑examination of the witness to whom this section applies (if required) and any other matters; and

may make provision for any other matter that the court thinks fit.

An order must not be made for, or in, a pre‑trial special hearing if the effect of the order would be—

to relieve a witness from the obligation to give sworn or unsworn evidence or to submit to cross‑examination (except where recorded evidence is admitted under section 13BA and permission of the court for further examination, cross‑examination or re‑examination of the witness is not granted); or

to prevent the judge or defendant from observing the witness's demeanour in giving evidence (but the observation may be direct or by live transmission of the witness's voice and image); or

to prevent the defendant from instructing counsel while the witness is giving evidence.

If a witness to whom this section applies is accompanied by a person for the purpose of providing emotional support or communication assistance—

the accompanying person must be visible to the judge while the witness is giving evidence; and

if the defendant is prevented from seeing the accompanying person directly while the witness is giving evidence—the court must ensure that the defendant is able to observe that person by direct transmission of images of the witness together with that person while the witness is giving evidence; and

the audio visual record of the evidence must show the accompanying person throughout the taking of the evidence.

A person may only provide communication assistance—

if the person—

is a communication partner or has been approved by the court to provide such assistance to the witness; and

takes an oath or makes an affirmation that he or she will communicate accurately with both the witness and the court; and

in a case where a party to the proceedings disputes the person's ability or impartiality in providing communication assistance—if the judge is satisfied as to the person's ability and impartiality.

The fact that a person has provided communication assistance to a witness in a pre‑trial special hearing under this section does not of itself prevent that person also from being called as a witness in the trial of the charge of the offence or in any other relevant proceedings.

If a witness to whom this section applies is accompanied by a canine court companion for the purpose of providing emotional support—

the witness may also be accompanied by a person who will act as a handler for the dog and subsection (4) applies to the handler as if they were an accompanying person providing emotional support to the witness; and

if practicable, the dog should not be visible in the audio visual record of the evidence.

An application for a pre‑trial special hearing must—

be made in writing by the party calling the witness to whom this section applies to give evidence; and

be filed in the court as a proceeding preliminary to the commencement of the trial; and

within

specify why the witness is a witness to whom this section applies and the reasons why the special hearing is sought; and

otherwise be made in accordance with the rules of court.

The respondent may, if of the opinion that the witness on whose behalf the application has been made is not in fact a witness to whom this section applies, within 14 days of being served with the application (the prescribed period), file an answering document in the court objecting to the application on that ground.

If an objection to the application is filed within the prescribed period, the court must determine the application before the commencement of the trial—

in the absence of the applicant and respondent; or

by conducting a hearing in a room closed to the public.

If no objection to the application is filed within the prescribed period, the court must, subject to subsection (1)(b) and (c), make an order for a pre‑trial special hearing pursuant to this section.

An order for a pre‑trial special hearing may be varied or revoked on the court's own initiative, or on the application of a party to the proceedings.

If an order has been made for a pre-trial special hearing in relation to a witness in a trial of a charge of a child sexual offence, the court may also (at the time of making that order, at the pre‑trial special hearing or at any other time) give 1 or more of the following directions:

a direction about the manner of questioning the witness;

a direction about the duration of questioning the witness;

a direction about the questions that may or may not be put to the witness;

if there is more than 1 accused, a direction about the allocation among the accused of the topics about which the witness may be asked;

a direction about the use of models, plans, body maps or similar aids to help communicate a question or an answer;

a direction that if a party intends to lead evidence that contradicts or challenges the evidence of the witness or that otherwise discredits the witness, the party is not obliged to put that evidence in its entirety to the witness in cross-examination;

any other direction the court thinks necessary for the fair and efficient conduct of the proceeding.

Subject to this section, a pre‑trial special hearing will be conducted as the court thinks fit.

At a pre‑trial special hearing the court may do any of the following:

make orders under section 13BA as to the admission of any recorded evidence of the witness made pursuant to Part 17 Division 3 of the Summary

if any such recorded evidence is to be admitted—hear and determine any application for further examination, cross‑examination or re‑examination of the witness made pursuant to section 13BA;

if no such recorded evidence exists or is to be admitted or if an application referred to in paragraph (b) is granted—permit examination, cross‑examination or re‑examination of the witness at the pre‑trial special hearing;

make orders under section 13BA as to the admission of the audio visual record of any examination, cross‑examination or re‑examination of the witness at the pre‑trial special hearing;

make orders (on the court's own initiative, or on the application of a party to the proceedings) as to any other matter that the court thinks fit (including, without limitation, any orders of a kind referred to in section 13A(2)).

The court may only permit examination, cross‑examination or re‑examination of the witness at the pre‑trial special hearing if the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time of the pre‑trial special hearing.

In this section—

the trial of a charge of a serious offence against the person; or

the trial of a charge of an offence of contravening or failing to comply with an intervention order under the Intervention

the trial of a charge of an offence of contravening or failing to comply with a restraining order under the Summary

a young child; or

a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions; or

in the case of a trial of a charge of a child sexual offence, any of the following witnesses:

an alleged victim of the offence (regardless of their age at the time of the trial);

a child;

a vulnerable witness;

any other witness if the court is satisfied that they should be allowed to give evidence in a manner contemplated by this section; or

in the case of a trial of an offence involving domestic abuse (within the meaning of the Intervention

An order made by the court at the pre‑trial special hearing as to the admission of a recording of evidence of a witness (being an order under section 13BA) is taken to have been made for the purposes of the trial and, subject to subsection (2), is binding on the trial court provided that, during the course of the trial, the witness is available, if required, for further examination, cross‑examination or re‑examination.

An order referred to in subsection (1) is not, however, binding on the trial court if the trial court is satisfied, on application by a party to proceedings and based only on matters that have arisen or become known after the making of the order at the pre‑trial special hearing, that the order should not be binding (either in respect of all or part of the evidence to which the order relates, as the court considers appropriate).

Despite subsection (1), the witness cannot be further examined, cross‑examined or re‑examined at the trial on the evidence admitted pursuant to an order made at the pre‑trial special hearing without the permission of the trial court which may only be given—

if the trial court is satisfied, on application by a party to proceedings, that a party to the proceedings has, since the pre‑trial special hearing, become aware of a matter of which the party could not reasonably have been aware at the time of the pre‑trial special hearing; or

if the witness gives evidence in the trial apart from or in addition to evidence admitted pursuant to an order made at the pre‑trial special hearing and the trial court is satisfied that it is in the interests of justice that the witness be further examined, cross‑examined or re‑examined at the trial; or

if the trial court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross‑examined or re‑examined.

A reference in this section to the trial court includes any subsequent trial following a stay of proceedings, discontinuance of an earlier trial or an appeal.

Subject to this section, if—

it is desirable to make special arrangements for taking evidence from a witness in a trial in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of the courtroom or for any other proper reason; and

the facilities necessary for the special arrangements are readily available to the court and it is otherwise practicable to make the special arrangements; and

the special arrangements can be made without prejudice to any party to the proceedings, the court should, on its own initiative, order that special arrangements be made for taking the evidence of the witness.

Without limiting the kind of order that may be made under this section, the court may make 1 or more of the following orders:

an order that the evidence be given outside the trial court and transmitted to the trial court by means of closed circuit television;

an order that the evidence be taken outside the trial court, and that an audio visual record of the evidence be made and replayed in the trial court;

an order that a screen, partition or one-way glass be placed to obscure the view of a party to whom the evidence relates or some other person;

an order that a defendant be excluded from the place where the evidence is taken, or otherwise be prevented from directly seeing and hearing the witness while giving evidence;

an order that the witness be accompanied by a relative or friend, or by a canine court companion, for the purpose of providing emotional support;

if the witness has a physical disability or cognitive impairment—an order that the evidence be taken in a particular way (to be specified by the court) that will, in the court's opinion, facilitate the taking of evidence from the witness or minimise the witness's embarrassment or distress.

The court may, if of the opinion that expert evidence would assist the court to determine the special arrangements that should be made for taking the evidence of the witness, receive such evidence and, if the native language of the witness is not English and the witness is not reasonably fluent in English, evidence about any additional difficulty that may be caused by the witness giving evidence through an interpreter.

Special arrangements made under this section may relate to the witness's evidence as a whole or to particular aspects of the witness's evidence, such as cross‑examination and re‑examination.

An order must not be made under this section if the effect of the order would be—

to relieve a witness from the obligation to give sworn evidence; or

to relieve a witness from the obligation to submit to cross‑examination;

to prevent the judge, jury or defendant from observing the witness's demeanour in giving evidence (but the observation may be direct or by live transmission of the witness's voice and image or by replay of a recording of the witness's voice and image); or

to prevent the defendant from instructing counsel while the witness is giving evidence.

If a witness is accompanied by a relative or friend for the purpose of providing emotional support, that person must be visible to the judge and jury (if any) while the witness is giving evidence and, if, in consequence of an order under this section, a party is prevented from seeing that person directly while the witness gives evidence, the court must ensure that the party is able to observe that person either—

by direct transmission of images of the witness together with that person while the witness is giving evidence; or

by the later replay of a recording of images of the witness together with that person made while the witness was giving evidence.

If a witness is accompanied by a canine court companion for the purpose of providing emotional support, the following provisions apply:

the witness may also be accompanied by a person who will act as a handler for the dog and subsection (6) applies to the handler as if they were an accompanying person providing emotional support to the witness;

in a criminal trial—

if the witness is accompanied by the dog while giving evidence before a jury—if practicable, the dog should not be visible to the jury while the witness is giving the evidence; and

if practicable, the dog should not be visible in any audio visual record of the evidence.

If, in a criminal trial, a court makes special arrangements for taking the evidence of a witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.

An order under this section may be made, varied or revoked on the court's own initiative, or on the application of a party or witness.

Subject to this section, if—

a vulnerable witness is to give evidence in criminal proceedings; and

the facilities necessary for the special arrangements are readily available to the court and it is otherwise practicable to make the special arrangements; and

the special arrangements can be made without prejudice to any party to the proceedings, the court must, on application under this section, order that special arrangements be made for taking the evidence of the witness.

Without limiting the kind of order that may be made under this section, the court may make 1 or more of the following orders:

an order that the evidence be given outside the trial court and transmitted to the trial court by means of closed circuit television;

an order that the evidence be taken outside the trial court, and that an audio visual record of the evidence be made and replayed in the trial court;

an order that a screen, partition or one‑way glass be placed to obscure the view of a party to whom the evidence relates or some other person;

an order that a defendant be excluded from the place where the evidence is taken, or otherwise be prevented from directly seeing and hearing the vulnerable witness while giving evidence;

an order that the evidence be taken in a particular way (to be specified by the court) that will, in the court's opinion, facilitate the taking of evidence from the vulnerable witness or minimise the witness's embarrassment or distress, including (for example)—

that the witness be accompanied by a relative, friend or other person, or by a canine court companion, for the purpose of providing emotional support; and

if the witness has a physical disability or cognitive impairment—that the evidence be taken in a particular way (to be specified by the court) that will, in the court's opinion, facilitate the taking of evidence from the witness or minimise the witness's embarrassment or distress (including, if the witness has complex communication needs, with such communication assistance as may be specified by the court);

that extra allowance be made for breaks during, and time to be given for, the taking of evidence; and

that, while the evidence is being taken, the judge and any lawyer present in the court not wear a wig or gown (or both).

Special arrangements made under this section may relate to the vulnerable witness's evidence as a whole or to particular aspects of the witness's evidence, such as cross‑examination and re‑examination.

An order must not be made under this section if the effect of the order would be—

to relieve a vulnerable witness from the obligation to give sworn evidence; or

to relieve a vulnerable witness from the obligation to submit to cross‑examination; or

to prevent the judge, jury or defendant from observing the vulnerable witness's demeanour in giving evidence (but the observation may be direct or by live transmission of the witness's voice and image or by replay of a recording of the witness's voice and image); or

to prevent the defendant from instructing counsel while the vulnerable witness is giving evidence.

If a vulnerable witness is accompanied by a person for the purpose of providing emotional support or communication assistance, that person must be visible to the judge and jury (if any) while the witness is giving evidence and, if, in consequence of an order under this section, a party is prevented from seeing that person directly while the witness gives evidence, the court must ensure that the party is able to observe that person either—

by direct transmission of images of the witness together with that person while the witness is giving evidence; or

by the later replay of a recording of images of the witness together with that person made while the witness was giving evidence.

A person may only provide communication assistance to a witness—

if the person—

is a communication partner or has been approved by the court to provide such assistance to the witness; and

takes an oath or makes an affirmation that he or she will communicate accurately with both the witness and the court; and

in a case where a party to the proceedings disputes the person's ability or impartiality in providing communication assistance—if the judge is satisfied as to the person's ability and impartiality.

The fact that a person has provided communication assistance to a witness in proceedings under this section does not of itself prevent that person also from being called as a witness to give evidence in the proceedings or in any other relevant proceedings.

If a witness is accompanied by a canine court companion for the purpose of providing emotional support, the following provisions apply:

the witness may also be accompanied by a person who will act as a handler for the dog and subsection (5) applies to the handler as if they were an accompanying person providing emotional support to the witness;

if the witness is accompanied by the dog while giving evidence before a jury—if practicable, the dog should not be visible to the jury while the witness is giving the evidence;

if practicable, the dog should not be visible in any audio visual record of the evidence.

An application for an order under this section must—

be made in writing by the party calling the vulnerable witness to give evidence; and

be filed in the court before the commencement of the trial; and

within

specify the nature of the vulnerability of the witness, the special arrangements sought and the reasons for the arrangements; and

otherwise be made in accordance with the rules of court.

The respondent may, if of the opinion that the witness on whose behalf the application has been made is not in fact a vulnerable witness, within 14 days of being served with the application (the prescribed period), file an answering document in the court objecting to the application on that ground.

If an objection to the application is filed within the prescribed period, the court must determine the application before the commencement of the trial—

in the absence of the applicant and respondent; or

by conducting a hearing in a room closed to the public.

The court may, if of the opinion that expert evidence would assist the court to determine the special arrangements that should be made for taking the evidence of the vulnerable witness, receive such evidence and, if the native language of the witness is not English and the witness is not reasonably fluent in English, evidence about any additional difficulty that may be caused by the witness giving evidence through an interpreter.

If no objection to the application is filed within the prescribed period, the court may order that appropriate special arrangements be made for taking the evidence of the vulnerable witness at the trial.

The court—

may dispense with special arrangements for taking the evidence of a vulnerable witness in criminal proceedings if—

the witness is an adult; and

the court is satisfied that—

the facilities necessary for the special arrangements are not readily available to the court; and

taking into account the following matters, it is not reasonably practicable to make the facilities available:

must give reasons for its decision.

If, in a criminal trial, a court makes special arrangements for taking the evidence of a vulnerable witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.

An order under this section may be made, varied or revoked on the court's own initiative, or on the application of a party to the proceedings.

If an order has been made under this section in relation to a witness in a trial of a charge of a child sexual offence, the court may also (at the time of making that order or at any other time) give 1 or more of the following directions:

a direction about the manner of questioning the witness;

a direction about the duration of questioning the witness;

a direction about the questions that may or may not be put to the witness;

if there is more than 1 accused, a direction about the allocation among the accused of the topics about which the witness may be asked;

a direction about the use of models, plans, body maps or similar aids to help communicate a question or an answer;

a direction that if a party intends to lead evidence that contradicts or challenges the evidence of the witness or that otherwise discredits the witness, the party is not obliged to put that evidence in its entirety to the witness in cross-examination;

any other direction the court thinks necessary for the fair and efficient conduct of the proceeding.