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This Act may be cited as the Evidence (Miscellaneous Provisions) Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.
S. 2 repealed by No. 12/1993 s. 6(a).
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S. 3 substituted by No. 8228 s. 2(1).
In this Act unless inconsistent with the context or subject-matter—
S. 3(1) def. of authorised deposit-taking institution inserted by No. 11/2001 s. 3(Sch. item 25.1).
authorised deposit-taking institution has the same meaning as in the Banking Act 1959 of the Commonwealth;
business includes public administration and any business profession occupation calling trade or undertaking whether engaged in or carried on by the Crown, or by a statutory authority, or by any other person, whether or not it is engaged in or carried on for profit;
S. 3(1) def. of child inserted by No. 2/2006 s. 24(a), amended by No. 11/2021 s. 3.
child means a person who is under the age of 18 years;
Note
See section 42C for the meaning of child for the purposes of Part IIA.
S. 3(1) def. of cognitive impairment inserted by No. 2/2006 s. 24(a).
cognitive impairment includes impairment because of mental illness, intellectual disability, dementia or brain injury;
court in relation to any legal proceeding, includes a person acting judicially;
criminal proceedings means any proceedings for or with respect to the committal for trial of any person for an indictable offence or the trial of any person for a summary or indictable offence;
U.K. 1965 s. 4(1), U.K. 1968 s. 10(1), N.Z. s. 2(c).
document includes, in addition to a document in writing—
any book map plan graph or drawing;
any photograph;
any label marking or other writing which identifies or describes any thing of which it forms part, or to which it is attached by any means whatsoever;
any disc tape sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom;
any film negative tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom; and
anything whatsoever on which is marked any words figures letters or symbols which are capable of carrying a definite meaning to persons conversant with them;
U.K. 1968 s. 10(1).
S. 3(1) def. of film amended by No. 10231 s. 4.
film includes a microfilm and a microfiche;
S. 3(1) def. of impaired inserted by No. 8/1991 s. 7(a), repealed by No. 2/2006 s. 24(b).
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S. 3(1) def. of lawyer inserted by No. 18/2005 s. 18(Sch. 1 item 40.1), amended by No. 17/2014 s. 160(Sch. 2 item 40.1).
lawyer means an Australian lawyer;
S. 3(1) def. of legal practitioner inserted by No. 18/2005 s. 18(Sch. 1 item 40.1), amended by No. 17/2014 s. 160(Sch. 2 item 40.1).
legal practitioner means an Australian legal practitioner;
S. 3(1) def. of legal proceeding amended by No. 67/2014 s. 147(Sch. 2 item 16.1).
legal proceeding includes any civil criminal or mixed proceeding and any inquiry in which evidence is or may be given before any court or person acting judicially including a Royal Commission or Board of Inquiry under the Inquiries Act 2014;
S. 3(1) def. of person acting judicially amended by Nos 57/1989 s. 3(Sch. item 67.2), 24/2008 s. 78(1).
person acting judicially includes any court judge arbitrator Associate Judge and any person or body having by law or by consent of parties authority to hear receive and examine evidence and any officer in any public department having in the discharge of his duties authority to examine evidence;
S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 59.1).
police officer has the same meaning as in the Victoria Police Act 2013;
S. 3(1) def. of sexual offence inserted by No. 8/1991 s. 7(b), repealed by No. 47/2016 s. 39.
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U.K. 1968 s. 10(2).
statement includes any representation of fact whether made in words or otherwise.
S. 3(2) substituted by No. 7/2010 s. 7.
A reference in this Act to a document includes a reference to—
any part of the document; or
any copy, reproduction or duplicate of the document or of any part of the document; or
any part of such a copy, reproduction or duplicate.
No. 3674 ss 4–9.
Pt 1 Div. 1 (Heading and ss 4–9) amended by Nos 7840 s. 20(a), 110/1986 s. 140(2), 57/1989 s. 3(Sch. item 67.3), substituted as Pt 1 Div. 1 (Heading and ss 4–6) by No. 57/1990 s. 4.
S. 4 substituted by No. 57/1990 s. 4.
S. 4(1) amended by No. 22/2020 s. 20(1).
The Supreme Court, in its discretion and where it appears in the interests of justice to do so, on the application of a party to a civil or criminal proceeding before the Supreme Court, may make, in relation to a person in Victoria, an order for the issue of a commission for the examination of the person on oath or affirmation at any place in Victoria.
S. 4(1A) inserted by No. 22/2020 s. 20(2).
The County Court, in its discretion and where it appears in the interests of justice to do so, on the application of a party to a civil or criminal proceeding before the County Court, may make, in relation to a person in Victoria, an order for the issue of a commission for the examination of the person on oath or affirmation at any place in Victoria.
S. 4(2) amended by No. 22/2020 s. 20(3).
In determining whether it is in the interests of justice to make an order under subsection (1) or (1A) in relation to the taking of evidence of a person, the matters to which the court must have regard include the following—
whether the person will be able to give evidence material to any issue to be tried in the proceeding;
whether, having regard to the interests of other parties to the proceeding, justice will be better served by granting or refusing the order.
S. 4(3) amended by No. 22/2020 s. 20(4).
If the Supreme Court makes an order under subsection (1), or the County Court makes an order under subsection (1A), the Court, in its discretion, at the time of the making of the order or at a subsequent time, may give such directions as it thinks just relating to the procedure to be followed in and in relation to the examination, including directions as to the time, place and manner of the examination, and to any other matter that the Court thinks relevant.
S. 4(4) amended by No. 22/2020 s. 20(3).
Subject to subsection (5), the Supreme Court or the County Court may, on such terms, if any, as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding the evidence of a person taken in any examination held as a result of an order made under subsection (1) or (1A) or a record of that evidence.
Evidence of a person so tendered is not admissible if—
it appears to the satisfaction of the Supreme Court or County Court at the hearing of the proceeding that the person is able to attend the hearing; or
the evidence would not have been admissible had it been given or produced at the hearing of the proceeding.
S. 4(6) amended by No. 22/2020 s. 20(3).
If it is in the interests of justice to do so, the Supreme Court or County Court may, in its discretion, exclude from the proceeding evidence taken in an examination held as a result of an order made under subsection (1) or (1A), whether or not it is otherwise admissible.
In this section, a reference to evidence taken in an examination includes a reference to—
a document produced at the examination; and
answers made, whether in writing, or orally and reduced to writing, to any written interrogatories presented at the examination.
S. 5 substituted by No. 57/1990 s. 4, amended by No. 68/2009 s. 97(Sch. item 54.1), repealed by No. 69/2009 s. 4.
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S. 6 substituted by No. 57/1990 s. 4.
This Division is not intended to exclude or limit the operation of any other law, or of any rule or regulation made under, or in pursuance of, such a law, that makes provision for the examination of witnesses for the purpose of a proceeding in Victoria.
Ss 7–9 repealed by No. 57/1990 s. 4.
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Pt 1 Div. 1A (Heading and ss 9A–9J) inserted by No. 8327 s. 2(b), amended by No. 57/1989 s. 3(Sch. items 67.4, 67.5), substituted as Pt 1 Div. 1A (Heading and ss 9A–9E) by No. 57/1990 s. 5.
S. 9A substituted by No. 57/1990 s. 5.
In this Division—
Australia includes the Territories of the Commonwealth (whether internal or external) for the government of which as a Territory provision is made by any Commonwealth Act;
examination includes any proceeding for the taking of evidence of a person conducted by the judicial authorities of a foreign country in relation to a letter of request issued as a result of an order made by a court under this Division;
inferior court means a court of the State, except when exercising federal jurisdiction, not being a superior court;
superior court means the Supreme Court or County Court, except when exercising federal jurisdiction.
S. 9B substituted by No. 57/1990 s. 5.
In any civil or criminal proceeding before a superior court, the court may, in its discretion and where it appears in the interests of justice to do so, on the application of a party to the proceeding, make, in relation to a person outside Australia, an order—
for the examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or
for the issue of a commission for the examination of the person on oath or affirmation at any place outside Australia; or
for the issue of a letter of request to the judicial authorities of a foreign country to take, or to cause to be taken, the evidence of the person.
In determining whether it is in the interests of justice to make an order under subsection (1) in relation to the taking of evidence of a person, the matters to which the court must have regard include the following—
whether the person is willing or able to come to Victoria to give evidence in the proceeding;
whether the person will be able to give evidence material to any issue to be tried in the proceeding;
whether, having regard to the interests of other parties to the proceeding, justice will be better served by granting or refusing the order.
If a court makes an order under subsection (1) of the kind referred to in subsection (1)(a) or (b), the court, in its discretion, at the time of the making of the order or at a subsequent time, may give such directions as it thinks just relating to the procedure to be followed in and in relation to the examination, including directions as to the time, place and manner of the examination, and to any other matter that the court thinks relevant.
If a court makes, in relation to a proceeding, an order under subsection (1) of the kind referred to in subsection (1)(c) in relation to the taking of evidence of a person, the court may, in its discretion, include in the order a request as to any matter relating to the taking of that evidence, including any of the following matters—
the examination, cross-examination or re-examination of the person, whether the evidence of the person is given orally, upon affidavit or otherwise;
the attendance of the legal representative of each party to the proceeding and the participation of those persons in the examination in appropriate circumstances;
any prescribed matter.
Subject to subsection (6), the court may, on such terms, if any, as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding the evidence of a person taken in any examination held as a result of an order made under subsection (1) or a record of that evidence.
Evidence of a person so tendered is not admissible if—
it appears to the satisfaction of the court at the hearing of the proceeding that the person is in Victoria and is able to attend the hearing; or
the evidence would not have been admissible had it been given or produced at the hearing of the proceeding.
If it is in the interests of justice to do so, the court may, in its discretion, exclude from the proceeding evidence taken in an examination held as a result of an order made under subsection (1), whether or not it is otherwise admissible.
In this section, a reference to evidence taken in an examination includes a reference to—
a document produced at the examination; and
answers made, whether in writing, or orally and reduced to writing, to any written interrogatories presented at the examination.
S. 9C substituted by No. 57/1990 s. 5.
The Supreme Court may, in its discretion, on the application of a party to a civil or criminal proceeding before an inferior court exercise the same power to make an order of the kind referred to in section 9B(1) for the purpose of that proceeding as the Supreme Court has under that subsection for the purpose of a proceeding in the Supreme Court.
Subsections (5), (6) and (7) of section 9B apply in relation to evidence taken in an examination held as a result of an order made by a court by virtue of this section in relation to an inferior court as if—
in subsections (5), (6) and (7)—
a reference to the proceeding were a reference to the proceeding in the inferior court; and
a reference to the court were a reference to the inferior court; and
in subsections (5) and (7), a reference to an order made under subsection (1) were a reference to an order made by a court by virtue of this section.
S. 9D substituted by No. 57/1990 s. 5, amended by No. 68/2009 s. 97(Sch. item 54.2).
This Division does not affect the power of a court in a criminal proceeding to exclude evidence that has been obtained illegally or would, if admitted, operate unfairly against the accused.
S. 9E substituted by No. 57/1990 s. 5.
This Division is not intended to exclude or limit the operation of any law of the State, or of any rule or regulation made under, or in pursuance of, such a law, that makes provision for the examination of witnesses outside Australia for the purpose of a proceeding in the State.
Pt 1 Div. 1B (Heading and ss 9F–9K) inserted by No. 57/1990 s. 5.
S. 9F inserted by No. 57/1990 s. 5.
This Division does not apply to an examination outside Australia, and references in this Division to persons, acts, matters or things outside the State shall be read as excluding those outside Australia.
S. 9G inserted by No. 57/1990 s. 5.
In this Division—
Australia includes the Territories of the Commonwealth (whether internal or external) for the government of which as a Territory provision is made by any Commonwealth Act;
examination includes any proceeding for the taking of evidence of a person conducted by the judicial authorities of a foreign country in relation to a letter of request issued as a result of an order made by a court under this Division;
inferior court means a court of the State, except when exercising federal jurisdiction, not being a superior court;
judicial authority, in relation to a place outside the State, means a court or person prescribed as an appropriate judicial authority for that place;
superior court means the Supreme Court or County Court, except when exercising federal jurisdiction.
S. 9H inserted by No. 57/1990 s. 5.
In any civil or criminal proceedings before a superior court, the court may, in its discretion and where it appears in the interests of justice to do so, make, in relation to a person outside the State, an order—
for the examination of the person on oath or affirmation at any place outside the State before a judge of the court, an officer of the court or such other person as the court may appoint; or
for the issue of a commission for the examination of the person on oath or affirmation at any place outside the State; or
for the issue of a letter of request to the judicial authorities of a place outside the State to take, or to cause to be taken, the evidence of the person.
In determining whether it is in the interests of justice to make an order under subsection (1) in relation to the taking of evidence of a person, the matters to which the court shall have regard include the following—
whether the person is willing or able to come to Victoria to give evidence in the proceeding;
whether the person will be able to give evidence material to any issue to be tried in the proceeding;
whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.
If a court makes an order under subsection (1) of the kind referred to in subsection (1)(a) or (b), the court, in its discretion, at the time of the making of the order or at a subsequent time, may give such directions as it thinks just relating to the procedure to be followed in and in relation to the examination, including directions as to the time, place and manner of the examination, and to any other matter that the court thinks relevant.
If a court makes, in relation to a proceeding, an order under subsection (1) of the kind referred to in subsection (1)(c) in relation to the taking of evidence of a person, the court may, in its discretion, include in the order a request as to any matter relating to the taking of that evidence, including any of the following matters—
the examination, cross-examination or re-examination of the person, whether the evidence of the person is given orally, upon affidavit or otherwise;
the attendance of the legal representative of each party to the proceeding and the participation of those persons in the examination in appropriate circumstances;
any prescribed matter.
Subject to subsection (6), the court may, on such terms, if any, as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding the evidence of a person taken in an examination held as a result of an order made under subsection (1) or a record of that evidence.
Evidence of a person so tendered is not admissible if—
it appears to the satisfaction of the court at the hearing of the proceeding that the person is in Victoria and is able to attend the hearing; or
the evidence would not have been admissible had it been given or produced at the hearing of the proceeding.
If it is in the interests of justice to do so, the court may, in its discretion, exclude from the proceeding evidence taken in an examination held as a result of an order made in subsection (1) whether or not it is otherwise admissible.
In this section a reference to evidence taken in an examination includes a reference to—
a document produced at the examination; and
answers made, whether in writing, or orally and reduced to writing, to any written interrogatories presented at the examination.
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