1Short title
This is the Evidence Act 2025.
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Bill homepageThis is the Evidence Act 2025.
This Act comes into operation as follows —
Part 1 — on the day on which this Act receives the Royal Assent;
Part 10 (but only section 384) — on the day after the day on which this Act receives the Royal Assent;
Part 12 Division 1 —
if the Aquatic Resources Management Act 2016 section 240 comes into operation on or before the day fixed under paragraph (e) for section 386 — on the day fixed under paragraph (e) for section 386; or
otherwise — immediately after the Aquatic Resources Management Act 2016 section 240 comes into operation;
Part 12 Division 17 —
if the Privacy and Responsible Information Sharing Act 2024 section 158 comes into operation on or before the day fixed under paragraph (e) for section 386 — on the day fixed under paragraph (e) for section 386; or
otherwise — immediately after the Privacy and Responsible Information Sharing Act 2024 section 158 comes into operation;
the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.
In this Act —
accused means a person alleged in a prosecution notice or indictment to have committed an offence;
admission means a previous representation that is —
made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
adverse to the person’s interest in the outcome of the proceeding;
asserted fact has the meaning given in section 72(1);
audio link means facilities (including telephone) that enable, at the same time, a court at a place to hear a person at another place and vice versa;
Australia includes each external Territory;
Australian court means —
the High Court of Australia; or
a court exercising federal jurisdiction; or
a court of a State or Territory; or
a judge, justice or arbitrator under an Australian law; or
a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or
a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence;
Australian law means a law of the Commonwealth, a State or a Territory;
Australian or overseas proceeding means a proceeding (however described) in an Australian court or a foreign court;
Australian Parliament means —
the Parliament; or
the Parliament of the Commonwealth or of another State; or
any present or former Legislative Assembly of a Territory, including the Australian Capital Territory House of Assembly;
business has a meaning affected by section 4;
case, of a party, means the facts in issue in respect of which the party bears the legal burden of proof;
child means —
a person under 18 years of age; or
a person referred to in paragraph (b), (c) or (d) of the definition of child in the Children’s Court of Western Australia Act 1988 section 3(1);
civil proceeding means a proceeding other than a criminal proceeding;
client has a meaning affected by section 148(1);
co‑accused, in relation to an accused in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for —
an offence that arose in relation to the same events as those in relation to which the offence for which the accused is being prosecuted arose; or
an offence that relates to or is connected with the offence for which the accused is being prosecuted;
coincidence evidence means evidence of a kind referred to in section 115(1) that a party seeks to have adduced for the purpose referred to in that subsection;
coincidence rule means the rule of evidence provided for by section 115(1);
complainant —
in relation to an offence — means a person against or in respect of whom the offence was or is alleged to have been committed, attempted or proposed, regardless of whether a complaint about the offence has been made to or recorded by a police officer; and
in a criminal proceeding — means the person against or in respect of whom the offence the subject of the proceeding was or is alleged to have been committed, attempted or proposed;
court means —
the Supreme Court, the District Court, the Children’s Court, the Family Court, the Magistrates Court, a warden’s court under the Mining Act 1978 or a court of summary jurisdiction (as defined in the Criminal Procedure Act 2004 section 3(1)); or
the Coroner’s Court of Western Australia; or
any other court created by Parliament; or
any person or body that, in exercising a function under a written law, is required to apply the laws of evidence;
credibility, of a person who has made a representation that has been admitted in evidence —
means the credibility of the representation; and
includes the person’s ability to observe or remember facts and events about which the person made the representation;
credibility, of a witness —
means the credibility of any part or all of the evidence of the witness; and
includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence;
credibility rule means the rule of evidence provided for by section 120;
criminal or identified organisation means —
a criminal organisation as defined in The Criminal Code section 221D(1); or
an organisation named in the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 Schedule 2;
criminal or identified organisation offence means an offence alleged to have been committed —
by a person who, at the time of the commission of the alleged offence, is alleged to have been a member of a criminal or identified organisation; or
at the direction of a criminal or identified organisation; or
in association with 1 or more members of a criminal or identified organisation (whether or not those members are or have been charged with, or convicted of, the offence); or
for the benefit of a criminal or identified organisation;
criminal proceeding —
means a prosecution for an offence, other than a prescribed taxation offence as defined in the Taxation Administration Act 1953 (Commonwealth) section 8A; and
includes the following stages of a prosecution —
a proceeding for the committal of a person for trial or sentence for the offence;
a proceeding relating to bail;
cross‑examination has the meaning given in section 5(2);
cross‑examiner means a party who is cross‑examining a witness;
disability includes the following —
mental impairment;
a developmental disorder;
a neurological disorder;
a physical disability;
document has the meaning given in section 6(1) and (2);
electronic communication has the meaning given in the Electronic Transactions Act 2011 section 5(1);
examination in chief has the meaning given in section 5(1);
external Territory has the meaning given in the Acts Interpretation Act 1901 (Commonwealth) section 2B;
family violence has the meaning given in the Restraining Orders Act 1997 section 5A;
family violence offence means an offence that involves family violence or the threat of, or attempted, family violence;
foreign court means any court (including any person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body has power to require the answering of questions or the production of documents) of a foreign country or a part of a foreign country;
government or official gazette includes the Gazette;
government or official website includes the WA legislation website;
ground rules hearing has the meaning given in section 295(1);
harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear);
hearsay rule means the rule of evidence provided for by section 72(1);
identification evidence has the meaning given in section 133;
investigating official means —
a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or
a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences;
judge, in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held;
law, of the State, the Commonwealth, another State, a Territory or a foreign country, has the meaning given in section 10;
leading question means a question asked of a witness that —
directly or indirectly suggests a particular answer to the question; or
assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked;
legal counsel means —
a legal practitioner; or
a lawyer employed in or by a government agency or other body who by law is exempted from holding an Australian practising certificate (as defined in the Legal Profession Uniform Law (WA) section 6(1)), or who does not require an Australian practising certificate, to engage in legal practice in the course of that employment;
mental impairment has the meaning given in the Criminal Law (Mental Impairment) Act 2023 section 9(1);
minister of religion —
means a person who is recognised in accordance with the practices of a faith or religion as a person who is authorised to conduct services or ceremonies in accordance with the tenets of the faith or religion; and
includes such a person regardless of how the person’s position or title is described (for example, member of the clergy, priest, minister, imam, rabbi or pastor);
offence —
means an offence against or arising under an Australian law; and
includes an alleged offence;
offspring, of a person, has the meaning given in section 13(1);
opinion rule means the rule of evidence provided for by section 90(1);
parent, of a person, has a meaning affected by section 13;
party, in a criminal proceeding, includes an accused;
person acting judicially —
means any person or body having, in this State, by law or by consent of the parties, authority to hear, receive and examine evidence; but
does not include —
the State Administrative Tribunal or a member of the State Administrative Tribunal exercising the jurisdiction of the Tribunal; or
a member of a House of Parliament or a committee of a House, or both Houses, of Parliament who, by law, has authority to hear, receive and examine evidence;
police officer means —
a member or special member of the Australian Federal Police; or
a member of the police force of a State or Territory;
previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced;
prior consistent statement, of a witness, means a previous representation of the witness that is consistent with evidence given by the witness;
prior inconsistent statement, of a witness, means a previous representation of the witness that is inconsistent with evidence given by the witness;
probative value, of evidence, means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue;
proceeding includes a proceeding that —
relates to bail; or
is an interlocutory proceeding or proceeding of a similar kind; or
is heard in chambers; or
relates to sentencing;
prosecutor means a person who institutes or is responsible for the conduct of a prosecution;
protected communication has the meaning given in section 165(1);
public document has the meaning given in section 6(3) and (4);
publish means to disseminate to the public or a section of the public by any means, including the following —
in a newspaper or periodical publication;
by radio broadcast, television, a website, an online facility or other electronic means;
re‑examination has the meaning given in section 5(3);
related proceeding, in relation to another proceeding, means —
a retrial or rehearing of the other proceeding; or
a proceeding by way of appeal from, or judicial review of, a decision made or penalty imposed in the other proceeding;
representation includes the following —
an express or implied representation (whether oral or in writing);
a representation to be inferred from conduct;
a representation not intended by its maker to be communicated to or seen by another person;
a representation that for any reason is not communicated;
screening procedure means a procedure that involves the use of a screen, one‑way glass or other device in relation to a witness while the witness gives evidence in a proceeding so that —
the witness cannot see a party to the proceeding; and
the witness can be seen by the judge, the jury (if any), each party to the proceeding and each party’s legal counsel (if any);
seal includes a stamp;
sexual abuse includes any misconduct of a sexual nature;
sexual offence means the following —
an offence under The Criminal Code Chapter XXXI;
an offence of a sexual nature under The Criminal Code Chapter XXII, XXV, XXVA or XXXIIIB;
an offence under a provision of The Criminal Code or another written law that has been repealed, if the acts or omissions that constituted the offence under the repealed provision would constitute an offence referred to in paragraph (a) or (b);
any other offence of a sexual nature —
including an offence under The Criminal Code section 306 or the Children and Community Services Act 2004 section 192; but
not including conduct of a person that has ceased to be an offence against, or arising under, a law of this State since the time when the person engaged in the conduct;
an offence of attempting to commit, conspiring with another person to commit, inciting another person to commit or attempting to procure another person to commit an offence referred to in paragraph (a), (b), (c) or (d);
sexual offence complainant means a complainant in relation to a sexual offence;
special witness has the meaning given in section 228(1);
superior court means the Supreme Court, the District Court or the Family Court, except when exercising federal jurisdiction;
tendency evidence means evidence of a kind referred to in section 113(1) that a party seeks to have adduced for the purpose referred to in that subsection;
tendency rule means the rule of evidence provided for by section 113(1);
traditional laws and customs, of an Aboriginal or Torres Strait Islander group (including a kinship group), includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group;
tribunal, of a State or Territory, means a person or body authorised by or under a law of the State or Territory to take evidence on oath or affirmation;
video link means facilities (including closed‑circuit television) that enable, at the same time, a court at a place to see and hear a person at another place and vice versa;
video link separation procedure means a procedure for giving evidence under which —
a witness gives evidence at a separate place to the courtroom, while the evidence is transmitted to the courtroom by means of a video link; or
a party is required to remain in a separate place to the courtroom while a witness gives evidence in the courtroom and the evidence of the witness is transmitted by means of video link to the place in which the party remains while the evidence is given;
WA tribunal —
means a tribunal established in this State under a written law; but
does not include the State Administrative Tribunal;
witness includes —
a party giving evidence; and
a person who is to give evidence as a witness in a proceeding.
A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence.
In this Act —
a reference to a person appointed or holding office under or because of a law of the State or another Australian law includes a reference to an employee as defined in the Public Sector Management Act 1994 section 3(1); and
a reference to a person appointed or holding office under or because of a law of the Commonwealth or another Australian law includes a reference to an APS employee as defined in the Public Service Act 1999 (Commonwealth) section 7; and
for the purposes of paragraphs (a) and (b), a reference to an office is a reference to the position occupied by the employee concerned.
Without limiting the effect of the Interpretation Act 1984 section 19, the material that may be considered in accordance with that section in the interpretation of a provision of this Act includes any relevant report of a Law Reform Commission laid before either House of the Parliament of the Commonwealth before the provision was enacted.
Note for this section:
The Evidence Act 1995 (Commonwealth) sets out a law of evidence that is the basis for similar (but not identical) Acts that have been enacted in some States and Territories. These Acts are referred to as the uniform evidence law. Parts of this Act are based on uniform evidence law provisions, as in force at 1 January 2025.
Parts of this Act are based on provisions of the Evidence Act 1906, which is repealed by this Act.
A note that compares a provision of this Act to a specified provision of the Evidence Act 1995 (Commonwealth), the Evidence Act 1995 (New South Wales) or the Evidence Act 1906 indicates that the provision of this Act is based (in whole or in part, and with possible modifications) on the specified provision.
Compare:
Evidence Act 1906 s. 3, 109 and 120
Evidence Act 1995 (Commonwealth) Dictionary
A reference in this Act to a business includes a reference to the following —
a profession, calling, occupation, trade or undertaking;
an activity engaged in or carried on by the Commonwealth, a State or a Territory;
an activity engaged in or carried on by the government of a foreign country;
an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity);
the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of a House of an Australian Parliament or a committee of an Australian Parliament;
the proceedings of a legislature of a foreign country, including a House or committee (however described) of a legislature of a foreign country.
A reference in this Act to a business also includes a reference to each of the following —
a business that is not engaged in or carried on for profit;
a business engaged in or carried on outside Australia.
Compare:
Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 1
The examination in chief of a witness is the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re‑examination.
The cross‑examination of a witness is the questioning of a witness by a party other than the party who called the witness to give evidence.
The re‑examination of a witness is the questioning of a witness by the party who called the witness to give evidence, being questioning (other than further examination in chief with the leave of the court) conducted after the cross‑examination of the witness by another party.
If a party recalls a witness who has already given evidence, the questioning of the witness by that party before the witness is questioned by another party is taken to be part of the examination in chief and not a re‑examination of the witness.
Compare:
Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 2
A document is any record of information, and includes the following —
anything on which there is writing;
anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
anything from which sounds, images or writings can be reproduced with or without the aid of anything else;
a map, plan, drawing or photograph.
A document also includes the following —
any part of the document;
any copy, reproduction or duplicate of the document or of any part of the document;
any part of a copy, reproduction or duplicate of a document.
A public document is a document that —
forms part of the records of the Commonwealth, a State or a Territory; or
forms part of the records of the government of a foreign country; or
forms part of the records of a person or body holding office or exercising a function under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country; or
is being kept by or on behalf of the Commonwealth, a State or a Territory, a government of a foreign country or a person or body referred to in paragraph (c).
A public document includes the records of the proceedings of, and papers presented to —
an Australian Parliament, a House of an Australian Parliament, a committee of a House of an Australian Parliament or a committee of an Australian Parliament; and
a legislature of a foreign country, including a House or committee (however described) of a legislature of a foreign country.
Compare:
Evidence Act 1995 (Commonwealth) Dictionary Part 1 and Part 2 cl. 8
For the purposes of this Act, a representation contained in a document is taken to have been made by a person if —
the document was written, made or otherwise produced by the person; or
the representation was recognised or acknowledged by the person as the person’s representation by signing, initialling or otherwise marking the document.
Compare:
Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 6
For the purposes of this Act, a document or thing is taken not to be available to a party if and only if —
it cannot be found after reasonable inquiry and search by the party; or
it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person; or
it would be impractical to produce the document or thing during the course of the proceeding; or
production of the document or thing during the course of the proceeding could render a person liable to conviction for an offence; or
it is not in the possession or under the control of the party and —
it cannot be obtained by any judicial procedure of the court; or
it is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or
it was in the possession or under the control of another party to the proceeding concerned at a time when that party knew or might reasonably be expected to have known that evidence of the contents of the document, or evidence of the thing, was likely to be relevant in the proceeding.
Compare:
Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 5
For the purposes of this Act, a person is taken not to be available to give evidence about a fact if —
the person is dead; or
the person is, for any reason other than the application of section 26, not competent to give the evidence; or
the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or
the person objects to giving the evidence under section 28 and that objection is upheld; or
it would be unlawful for the person to give the evidence; or
a provision of this Act prohibits the evidence being given; or
all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure the person’s attendance, without success; or
all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, without success.
In all other cases, the person is taken to be available to give evidence about the fact.
In deciding whether a person is not available to give evidence under subsection (1)(b) or (c), a court may inform itself as it thinks fit.
Compare:
Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 4
A reference in this Act to a law of the State is a reference to a written law or an unwritten law of, or in force in, the State.
A reference in this Act to a law of the Commonwealth, another State, a Territory or a foreign country is a reference to a law (whether in the nature of a written law or an unwritten law) of, or in force in, that place.
A reference in this Act to an Australian law is a reference to an Australian law (whether in the nature of a written law or an unwritten law) of, or in force in, Australia.
Compare:
Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 9
A reference in this Act to a criminal proceeding for a particular offence is a reference to a criminal proceeding in which a person stands charged with that offence —
whether or not the person is charged with that offence alone or together with another offence (as an alternative or additional count); and
whether or not the person is liable on the charge to be found guilty of any other offence.
If a provision of this Act applies to a criminal proceeding for a particular offence it also applies to any related proceeding, unless the contrary intention appears.
Compare:
Evidence Act 1906 s. 36A and Schedule 7 Part A cl. 1
For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country.
Compare:
Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 3
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