(1) This Act applies to all proceedings in a NSW court, including proceedings that—
(a) relate to bail, subject to Division 4 of Part 3 of the , or Bail Act 2013 (b) are interlocutory proceedings or proceedings of a similar kind, or (c) are heard in chambers, or (d) subject to subsection (2), relate to sentencing.
(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability)—
(a) the person does not have the capacity to understand a question about the fact, or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome. Note— See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities. (2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
(1) This section applies only in a criminal proceeding. (2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required—
(a) to give evidence, or (b) to give evidence of a communication between the person and the defendant, as a witness for the prosecution. (3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.
(1) This section applies only in a criminal proceeding for an indictable offence.
(1) A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence.
(1) A person must either take an oath, or make an affirmation, before acting as an interpreter in a proceeding.
(1) A person who is to be a witness or act as an interpreter in a proceeding may choose whether to take an oath or make an affirmation.
(1) A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court.
(1) A leading question must not be put to a witness in examination in chief or in re-examination unless—
(a) the court gives leave, or (b) the question relates to a matter introductory to the witness’s evidence, or (c) no objection is made to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the proceeding is represented by an Australian legal practitioner, legal counsel or prosecutor, or (d) the question relates to a matter that is not in dispute, or (e) if the witness has specialised knowledge based on the witness’s training, study or experience—the question is asked for the purpose of obtaining the witness’s opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given.
(1) The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a disallowable question )—
(a) is misleading or confusing, or (b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or (c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or (d) has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability). (2) Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account—
(a) any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality, and (b) any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject, and (c) the context in which the question is put, including—
(i) the nature of the proceeding, and (ii) in a criminal proceeding—the nature of the offence to which the proceeding relates, and (iii) the relationship (if any) between the witness and any other party to the proceeding.
(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods—
(a) adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question, (b) tendering a document that—
(i) is or purports to be a copy of the document in question, and (ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents, (c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)—tendering a document that is or purports to be a transcript of the words, (d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it—tendering a document that was or purports to have been produced by use of the device, (e) tendering a document that—
(i) forms part of the records of or kept by a business (whether or not the business is still in existence), and (ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary, (f) if the document in question is a public document—tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed—
(i) by a person authorised by or on behalf of the government to print the document or by the Government Printer of the Commonwealth or by the government or official printer of another State or a Territory, or (ii) by the authority of the Government or administration of the State, the Commonwealth, another State, a Territory or a foreign country, or (iii) by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.
Introductory note— Outline of this Chapter This Chapter is about whether evidence adduced in a proceeding is admissible. Part 3.1 sets out the general inclusionary rule that relevant evidence is admissible. Part 3.2 is about the exclusion of hearsay evidence, and exceptions to the hearsay rule. Part 3.3 is about exclusion of opinion evidence, and exceptions to the opinion rule. Part 3.4 is about admissions and the extent to which they are admissible as exceptions to the hearsay rule and the opinion rule. Part 3.5 is about exclusion of certain evidence of judgments and convictions. Part 3.6 is about exclusion of evidence of tendency or coincidence, and exceptions to the tendency rule and the coincidence rule. Part 3.7 is about exclusion of evidence relevant only to credibility, and exceptions to the credibility rule. Part 3.8 is about character evidence and the extent to which it is admissible as exceptions to the hearsay rule, the opinion rule, the tendency rule and the credibility rule. Part 3.9 is about the requirements that must be satisfied before identification evidence is admissible. Part 3.10 is about the various categories of privilege that may prevent evidence being adduced. Part 3.11 provides for the discretionary and mandatory exclusion of evidence even if it would otherwise be admissible. The following diagram shows how this Chapter applies to particular evidence—
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
(a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was—
(i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable. Note— Section 67 imposes notice requirements relating to this subsection. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied—
(a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. Note— Section 67 imposes notice requirements relating to this subsection. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that—
(a) is given in an Australian or overseas proceeding, and (b) is admitted into evidence in the criminal proceeding because of subsection (3), cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation.
(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—
(a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
Note— Admission is defined in the Dictionary.
(1) Subject to section 89A, in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused—
(a) to answer one or more questions, or (b) to respond to a representation, put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.
(1) In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact—
(a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and (b) that is relied on in his or her defence in that proceeding. (2) Subsection (1) does not apply unless—
(a) a special caution was given to the defendant by an investigating official who, at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence, and (b) the special caution was given before the failure or refusal to mention the fact, and (c) the special caution was given in the presence of an Australian legal practitioner who was acting for the defendant at that time, and (d) the defendant had, before the failure or refusal to mention the fact, been allowed a reasonable opportunity to consult with that Australian legal practitioner, in the absence of the investigating official, about the general nature and effect of special cautions. (3) It is not necessary that a particular form of words be used in giving a special caution. (4) An investigating official must not give a special caution to a person being questioned in relation to an offence unless satisfied that the offence is a serious indictable offence.
(1) This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103. (2) A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant’s credibility, unless the court gives leave.
(1) This section applies only in a criminal proceeding and so applies in addition to section 108A. (2) If the person referred to in that section is a defendant, the credibility evidence is not admissible unless the court gives leave.
Note— Identification evidence is defined in the Dictionary.
(1) In this section— visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.(2) Visual identification evidence adduced by the prosecutor is not admissible unless—
(a) an identification parade that included the defendant was held before the identification was made, or (b) it would not have been reasonable to have held such a parade, or (c) the defendant refused to take part in such a parade, and the identification was made without the person who made it having been intentionally influenced to identify the defendant.
(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose—
(a) a protected confidence, or (b) the contents of a document recording a protected confidence, or (c) protected identity information.
(1) This Division does not apply in relation to a proceeding the hearing of which began before the commencement of this Division.
Note— The Commonwealth Act does not include this Division.
(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness—
(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty. (2) The court must determine whether or not there are reasonable grounds for the objection. (3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness—
(a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and (b) that the court will give a certificate under this section if—
(i) the witness willingly gives the evidence without being required to do so under subsection (4), or (ii) the witness gives the evidence after being required to do so under subsection (4), and (c) of the effect of such a certificate. (4) The court may require the witness to give the evidence if the court is satisfied that—
(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (b) the interests of justice require that the witness give the evidence. (5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence. (6) The court is also to cause a witness to be given a certificate under this section if—
(a) the objection has been overruled, and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.
(1) In this section— disclosure order means an order made by a NSW court in a civil proceeding requiring a person to disclose information as part of, or in connection with, a freezing, search or other order under Part 25 of thebut does not include an order made by a court under the Uniform Civil Procedure Rules 2005 of the Commonwealth or the Proceeds of Crime Act 2002 or Confiscation of Proceeds of Crime Act 1989 of New South Wales. Criminal Assets Recovery Act 1990 relevant person means a person to whom a disclosure order is directed.(2) If a relevant person objects to complying with a disclosure order on the grounds that some or all of the information required to be disclosed may tend to prove that the person—
(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty, the person must—
(c) disclose so much of the information required to be disclosed to which no objection is taken, and (d) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken (the privilege affidavit ) and deliver it to the court in a sealed envelope, and(e) file and serve on each other party a separate affidavit setting out the basis of the objection. (3) The sealed envelope containing the privilege affidavit must not be opened except as directed by the court. (4) The court must determine whether or not there are reasonable grounds for the objection. (5) Subject to subsection (6), if the court finds that there are reasonable grounds for the objection, the court must not require the information contained in the privilege affidavit to be disclosed and must return it to the relevant person. (6) If the court is satisfied that—
(a) any information disclosed in the privilege affidavit may tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, and (b) the information does not tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (c) the interests of justice require the information to be disclosed, the court may make an order requiring the whole or any part of the privilege affidavit containing information of the kind referred to in paragraph (a) to be filed and served on the parties.
(1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—
(a) the person was under arrest for an offence at the time, and (b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. (2) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—
(a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and (b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and (c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
Introductory note— Outline of this Chapter This Chapter is about the proof of matters in a proceeding. Part 4.1 is about the standard of proof in civil proceedings and in criminal proceedings. Part 4.2 is about matters that do not require proof in a proceeding. Part 4.3 makes easier the proof of the matters dealt with in that Part. Part 4.4 is about requirements that evidence be corroborated. Part 4.5 requires judges to warn juries about the potential unreliability of certain kinds of evidence. Part 4.6 sets out procedures for proving certain other matters.
(1) This section applies to a document—
(a) that is produced wholly or partly by a device or process, and (b) that is tendered by a party who asserts that, in producing the document, the device or process has produced a particular outcome.
(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the seventh working day after having been posted.
(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence—
(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person—evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to—
(a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(1) This section applies in a criminal proceeding in which there is a jury. (2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.
Note— Section 182 of the Commonwealth Act gives Division 1 of Part 4.6 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.
Note— Section 182 of the Commonwealth Act gives Division 2 of Part 4.6 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.
(1) If the determination of a question whether—
(a) evidence should be admitted (whether in the exercise of a discretion or not), or (b) evidence can be used against a person, or (c) a witness is competent or compellable, depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question. (2) If there is a jury, a preliminary question whether—
(a) particular evidence is evidence of an admission, or evidence to which section 138 (Discretion to exclude improperly or illegally obtained evidence) applies, or (b) evidence of an admission, or evidence to which section 138 applies, should be admitted, is to be heard and determined in the jury’s absence. (3) In the hearing of a preliminary question about whether a defendant’s admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission’s truth or untruth is to be disregarded unless the issue is introduced by the defendant.
(1) The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of—
(a) Division 3, 4 or 5 of Part 2.1, or (b) Part 2.2 or 2.3, or (c) Parts 3.2–3.8, in relation to particular evidence or generally.
(1) If a witness fails to appear when called in any civil or criminal proceedings and it is proved that he or she has been duly bound by recognisance or served with a summons or subpoena, the court may—
(a) order the witness to show cause at those or later proceedings why execution of the recognisance or an attachment for disobedience to the summons or subpoena should not be issued against the witness, or (b) if it is proved that the non-appearance is without just cause or reasonable excuse and that the witness will probably be able to give relevant evidence in the proceeding, issue a warrant to bring the witness before the court to give the evidence.
(Section 198)
(Section 3)