Evidence Act 1910

Evidence Act 1910

An Act to consolidate and amend the Statute law respecting evidence

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART I - [Part I Heading transposed by No. 36 of 1958, s. 4 and Sched. 3 ]Preliminary

1.   Short title and commencement

[Section 1 Amended by 25 Geo. V No. 78 ]This Act may be cited as the Evidence Act 1910 , and shall come into operation on 1st January 1911.

2.   

[Section 2 Repealed by 25 Geo. V No. 78 ].  .  .  .  .  .  .  .  

3.   Interpretation

[Section 3 Amended by 25 Geo. V No. 78 ][Section 3 Amended by No. 36 of 1958 ]

(1)  [Section 3 Subsection (1) amended by No. 36 of 1958, s. 4 and Sched. 3 ][Section 3 Subsection (1) amended by No. 14 of 1976, s. 2 ][Section 3 Subsection (1) amended by No. 4 of 1988, s. 165 ]In this Act, unless the contrary intention appears –

Australasian Colony means New South Wales, Queensland, South Australia, Victoria, Western Australia, and Tasmania, while such possessions constituted separate colonies; the Territory of Papua; New Zealand; Fiji; and any other British possession which may at any time be created within His Majesty's possessions in Australasia;

bank or banker means –

(a) any person engaged in the ordinary business of banking by receiving deposits and issuing bills or notes payable to the bearer, or at sight or on demand; and

(b) any savings bank established under any law in force for the time being;

commissioner for declarations means a person –

(a) who is appointed as a commissioner for declarations under section 131A ; or

(b) who is a commissioner for declarations by virtue of section 131B ;

court includes every court of the State of whatsoever jurisdiction;

examined copy means a copy proved to have been examined with the original, and to correspond therewith. The examinations may be made either by one person reading both the original and the copy, or by two persons, one reading the original and the other the copy, and it is not necessary that each should alternately read both;

Gazette means the London Gazette, the Edinburgh Gazette, the Dublin Gazette, the Commonwealth of Australia Gazette, and the Government Gazette, Royal Gazette, or other official gazette of any State or Australasian Colony;

Government Printer means the printer to His Majesty, and any person printing for the Government of the Commonwealth or of any State or Australasian Colony, and any printer purporting to be the printer authorized to print the Statutes, ordinances, Acts of State, or other public Acts of the legislature of any Australasian Colony, or otherwise to be the Government Printer of such Colony;

[Section 3 Subsection (1) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] judge means a judge of the Supreme Court, a magistrate, a warden of a warden's court under any Act relating to mining, and also includes any justice sitting in court;

legal proceeding or proceeding includes any action, trial, inquiry, cause, or matter, whether civil or criminal, in which evidence is or may be given, and includes an arbitration;

medical practitioner means a person who is resident in a State or Territory of the Commonwealth and who is entitled to practise as a medical practitioner in accordance with the laws of that State or Territory;

person acting judicially means any person having, by law or by consent of parties, or by virtue of a Royal Commission, authority to hear, receive, and examine evidence or to make any inquiry;

prisoner includes any person committed to prison for punishment, or on remand, or for trial, safe custody, or otherwise;

State means a State of the Commonwealth, and includes this State;

uncorroborated testimony means testimony which is not corroborated in some material particular by other evidence implicating the accused person;

votes and proceedings shall be deemed to include journals and minutes, and any papers purporting to be printed by the authority of and to be laid before either House of Parliament of the United Kingdom, or of the Commonwealth, or of any State, or of any Australasian Colony.

(2)  Where by any Act it is provided that any matter or thing shall be evidence of some fact or matter or shall be received or may be given as evidence thereof, it shall be intended that such matter or thing shall be received as evidence in all legal proceedings and in and by all courts, and by and before all persons acting judicially.

(3)  [Section 3 Subsection (3) added by No. 36 of 1958, s. 4 and Sched. 3 ][Section 3 Subsection (3) amended by No. 21 of 1985, s. 4 ]In this Act, an expression referring to bankers' books (however expressed) includes any ledger, day-book, cashbook, account book, or other book used in the ordinary business of a bank and also includes any record of information used in the ordinary business of a bank that is derived by means of microfilm, electronic process, or any other process.

4.   Application of Act

All the provisions of this Act, except where the contrary intention appears, shall apply to every legal proceeding.

5.   Saving of existing powers

[Section 5 Amended by 25 Geo. V No. 78 ][Section 5 Amended by No. 91 of 1974, s. 2 ]Except as otherwise expressly provided in this Act, the provisions of this Act shall be in addition to, and not in derogation of, any powers, rights, or rules of evidence existing at common law, or given by any law not inconsistent with the provisions of this Act.

PART II - The means of obtaining evidence

Division 1 - Examination of witnesses upon interrogatories or otherwise

6.   Interpretation

[Section 6 Amended by 25 Geo. V No. 78 ]In this Division –

[Section 6 Amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] court means the Supreme Court in any jurisdiction, the Magistrates Court (Civil Division) and any warden's court under any Act relating to mining;

[Section 6 Amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] judge means a judge of the Supreme Court, a magistrate and a warden of mines.

7.   Power of Supreme Court or judge to order examination of witnesses on interrogatories or otherwise

[Section 7 Amended by 25 Geo. V No. 78 ]

(1)  In any action or other proceeding in the court, except a criminal proceeding, at any stage thereof, and upon the application of any party thereto, the court or a judge may by rule or order direct –

(a) that any witness within the jurisdiction of the court be examined on oath, either viva voce or upon interrogatories or otherwise, before an officer of the court or other person to be named in the rule or order; or

(b) that a commission do issue for the examination of witnesses on oath, either viva voce or upon interrogatories or otherwise, at any place in or out of the jurisdiction.

(2)  The court or judge may by the same or any subsequent rule or order give all such directions touching the time, place, and manner of such examination as well within the jurisdiction as without, and all other matters and circumstances connected with such examination as may appear reasonable and just.

(3)  Where the application is made to –

(a) a court of requests or a commissioner thereof; or

(b) a warden's court or a warden of mines –

the practice of the Supreme Court in like cases shall apply and be followed as far as possible in making the application and in relation to the proceedings to be had thereupon.

8.   Parties

[Section 8 Amended by 25 Geo. V No. 78 ]No such rule or order shall be made with respect to a witness who is a party to the action or proceeding, on the ground of his intended departure from Tasmania, unless it be shown to the satisfaction of the court or judge that such departure is in fact urgently required by unavoidable circumstances or some unexpected emergency, and that the examination is not sought in order to avoid cross-examination before the court or a jury.

9.   Compelling attendance of witnesses or production of documents

[Section 9 Amended by 25 Geo. V No. 78 ][Section 9 Subsection (2) amended by No. 77 of 1987, s. 6 and Sched. 1 ]

(1)  Where any rule or order is made under this Division –

(a) for the examination of any witness; or

(b) for the issue of a commission for an examination of witnesses within the jurisdiction of the court –

the court or judge may by such rule or order or any subsequent rule or order command the attendance of any person named therein for the purpose of being examined, or the production of any book, writing, or other document mentioned therein, and may direct the attendance of such person to be at his own place of abode, or elsewhere, if necessary or convenient so to do.

(2)  [Section 9 Subsection (2) amended by No. 55 of 1965, s. 5 ]If any person served with a copy of any such rule or order (whether the copy is served personally or by being left at his usual place of abode), without reasonable excuse, disobeys any such rule or order he shall be liable as for contempt of court, and –

(a) in the case of the Supreme Court or a judge thereof proceedings may be thereupon had by attachment;

(b) in any other case it shall be lawful for the court or a judge, if it or he thinks fit, by a warrant under the hand of the Registrar, to commit any such offender to any gaol for 3 months, or to impose upon such offender a fine not exceeding 5 penalty units, and in default of payment thereof to commit the offender to any gaol for 3 months unless the said fine is sooner paid.

(3)  No person shall be compelled to produce under any such rule or order any book, writing, or other document that he would not be compellable to produce at the trial.

(4)  Every person whose attendance shall be so required shall be entitled to the like conduct money, and payment for expenses and loss of time, as upon attendance at a trial.

10.   Examinations of witnesses to be taken upon oath

(1)  Any person authorized by any rule, order, or commission under this Division to take the examination of any witness, shall take such examination upon oath of such witness (or his affirmation in cases where the same is allowed by law), to be administered by the person so authorized or by a judge.

(2)  Any witness who, upon such oath or affirmation, wilfully gives any false evidence shall be deemed guilty of perjury, and be liable to such punishment as by law may be inflicted for that offence.

11.   Persons appointed for taking examinations to report upon the conduct or absence of witnesses if necessary

(1)  Any person authorized by any rule, order, or commission under this Division to take an examination within the jurisdiction may, and if need be shall, make a special report to the court touching the examination and the conduct or absence of any witness or other person thereon or relating thereto.

(2)  The court may institute such proceedings and make such order upon such report as justice requires, and as may be instituted and made in any case of contempt of court.

12.   Costs of an examination may be made costs in the cause

[Section 12 Amended by 25 Geo. V No. 78 ]The costs of every rule, order, or commission under this Division, and of the proceedings thereupon, shall be costs in the cause, unless otherwise directed by the judge making the rule or order, or by the judge before whom the cause may be had, or by the court wherein the action or proceeding is depending.

13.   Provisions relating to the reading of examinations

(1)  The examination of any witness taken under this Division may be read in evidence at the hearing, saving all just exceptions.

(2)  Provided that, if it appears to the satisfaction of the court or judge at the hearing that such witness is within the jurisdiction and able to attend the hearing, such examination shall be rejected.

(3)  Where such examination appears to be certified under the hand of the person authorized to take the same, no proof shall be necessary of the signature of such person.

Division 2 - .  .  .  .  .  .  .  .  

[Part II, Div. 2  Repealed by No. 70 of 1995, s. 41 ]

13A.   

[Section 13A Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

13B.   

.  .  .  .  .  .  .  .  

13C.   

.  .  .  .  .  .  .  .  

14.   

[Section 14 Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

14A.   

[Section 14A Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

15.   

[Section 15 Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

16.   

[Section 16 Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

17.   

[Section 17 Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

17A.   

[Section 17A Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

17B.   

[Section 17B Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

17C.   

[Section 17C Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

17D.   

[Section 17D Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

17E.   

[Section 17E Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

17F.   

[Section 17F Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

17G.   

[Section 17G Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

17H.   

[Section 17H Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

17I.   

[Section 17I Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

17J.   

[Section 17J Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

18.   

[Section 18 Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

19.   

[Section 19 Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

20.   

[Section 20 Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

21.   

[Section 21 Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

22.   

[Section 22 Repealed by No. 70 of 1995, s. 41 ].  .  .  .  .  .  .  .  

Division 3 - Examination of witnesses by Parliamentary Committee

23.   Power of select committees of either House of Parliament to examine witnesses upon declaration

Any –

(a) select committee of either House of Parliament; or

(b) joint committee of both Houses of Parliament –

to which any matter has been referred by such House or Houses, with the power to send for persons and papers, may examine witnesses upon their solemn declaration upon any subject relating to the matter which has been so referred, and for that purpose any such witness may make before the chairman of any such committee or joint committee a declaration as follows, namely:

"I, A.B., solemnly promise and declare that the evidence given by me to this committee shall be the truth, the whole truth, and nothing but the truth."

24.   False evidence perjury

Any person examined as aforesaid who wilfully gives false evidence shall be deemed guilty of perjury, and be liable to such punishment as by law may be inflicted for that offence.

Division 4 - Medical examinations of injured persons

[Part II, Div. 4 Inserted by No. 46 of 1954, s. 3 and Sched. 2 ]

25.   Right of defendant to have injured person medically examined in certain cases

[Section 25 Inserted by No. 46 of 1954, s. 3 and Sched. 2 ]

(1)  [Section 25 Subsection (1) amended by No. 4 of 1988, s. 165 ]Where proceedings are taken against a person (in this section referred to as "the defendant") in respect of any injury sustained by another person (in this section referred to as "the injured person"), a medical practitioner appointed by the defendant shall be entitled, on demand of the defendant, to examine the injured person, and the injured person and all other parties (if any) to the proceedings shall give to that medical practitioner all such facilities and information as may be necessary to enable him to ascertain fully the nature and extent of the injury.

(2)  If the injured person fails –

(a) to submit himself to an examination by a medical practitioner appointed by the defendant for the purposes of this section; or

(b) to give to a medical practitioner so appointed all such facilities and information as he is required by this section to give to that medical practitioner –

the court in which any proceedings are taken by the injured person against the defendant (whether the proceedings are commenced before or after making of a demand under subsection (1) ) may, on the application of the defendant, order that those proceedings shall be stayed under the injured person submits himself to the examination, or gives the facilities and information, as the case may be.

Division 5 - Inspection of realty or personalty

26.   Inspection of realty or personalty

[Section 26 Amended by 25 Geo. V No. 78 ]

(1)  Any party to any proceeding shall be at liberty to apply to a court or judge, or person acting judicially, for a rule or order for the inspection by himself, or by his witnesses, or by the jury, of any real or personal property the inspection of which may be material to the proper determination of the question in dispute or the making of any inquiry. It shall be lawful for the court or a judge, or such person as aforesaid, if it or he think fit, to make such rule or order upon such terms as to costs and otherwise as such court, judge, or person may direct. Provided always, that nothing in this section contained shall affect the provisions of any Act as to obtaining a view by jury.

(2)  [Section 26 Subsection (2) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] Whenever any proceeding shall be pending in the Supreme Court in any jurisdiction, or in the Magistrates Court (Civil Division), the court or a judge thereof may, upon the application of any party to the proceeding, compel the opposite party to allow the applicant to inspect all documents in the custody or under the control of such opposite party relating to the proceeding, and, if necessary, to take examined copies of the same, in all cases in which prior to 6th October 1853 a discovery might have been obtained by filing a bill or by any other proceeding in a court of equity at the instance of such applicant.

PART III - Means of proof and admissibility of evidence

Division 1 - By-laws

27.   Interpretation

[Section 27 Amended by No. 30 of 1995, s. 3 and Sched. 1 ]In the construction and for the purposes of this Division –

(a) by-laws includes articles of association, regulations, and rules;

(b) corporation includes every corporation howsoever created, and whether the same exists for municipal, trading, mining, scientific, charitable, or other purposes;

(c) municipal corporation means a council;

(d) municipal council means a council;

(e) municipality means a municipal area;

(f) town clerk means a general manager within the meaning of the Local Government Act 1993 .

28.   Proof of by-laws

[Section 28 Amended by 25 Geo. V No. 78 ]In addition to the mode of proof prescribed by section 73 the production of a written or printed copy of any by-law made by or on behalf of any corporation under any Act authenticated as hereinafter mentioned, shall be evidence, until the contrary is proved, of –

(a) the due making and existence of such by-law; and

(b) of the time at which the same by-law came into force –

in all legal proceedings, without further proof of the making of such by-law, or of the performance of any condition, the doing of any act, or the lapse of any time respectively necessary to give them validity.

29.   Form of certificate

[Section 29 Amended by No. 36 of 1958, s. 4 and Sched. 3 ]

(1)  For the purpose of such authentication a certificate in the form set forth in subsection (4) written or printed on any such copy as aforesaid, shall be sealed with the common seal of the corporation.

(2)  [Section 29 Subsection (2) amended by No. 30 of 1995, s. 3 and Sched. 1 ]In the case of any municipal corporation the seal shall be affixed in the presence of and attested by the mayor and town clerk as the case may be.

(3)  In the case of any other corporation, the seal shall be affixed in the presence of and attested by any two of the board of directors, or managing or governing body, by whatsoever designation or title they may be called or known.

(4)  The certificate referred to in subsection (1) shall be in the following form:

Form

30.   Technical proof unnecessary

[Section 30 Amended by 25 Geo. V No. 78 ]It shall not be necessary to give any proof of the common seal when purporting to be attached to any such certificate.

31.   Proof of proceedings of councils, committees, &c.

(1)  [Section 31 Subsection (1) amended by No. 30 of 1995, s. 3 and Sched. 1 ]Any minute of proceedings at meetings of any municipal council, or of any board of directors, or of any managing or governing body, by whatsoever designation or title they may be called or known, or of committees of any municipal council, if signed by any person purporting to be the mayor of a municipal council, or the chairman of a meeting of a municipal council or board of directors, or of the managing or governing body, either at the meeting at which such proceedings took place or at the next ensuing meeting of the body whose proceedings are recorded, shall be receivable in evidence in all legal proceedings without further proof.

(2)  Until the contrary is proved, every meeting in respect of the proceedings of which the minutes have been so made shall be deemed to have been duly convened and held, and all the members thereof to have been duly qualified, and, when such proceedings are proceedings of committees, that such committees have been duly and regularly constituted and had power to deal with the matters referred to in such proceedings.

32.   Proceedings to test legality

[Section 32 Amended by No. 55 of 1965, s. 5 ]Any person who pays into the Supreme Court the sum of $30 as security for the costs of the proceedings hereinafter in this section mentioned, may apply to the said court or a judge thereof for a rule calling upon the person or corporation, or unincorporate body, by or on whose behalf any by-law shall have been made, to show cause why such by-law should not be quashed, either wholly or in part, for the illegality thereof; and the said court or judge may make such rule absolute or discharge the same, with or without costs, as to the said court or judge seems meet.

Division 2 - Bankers' books

33.   Entries in bankers' books

Subject to the provisions of this Division, a copy of any entry in a banker's book shall be evidence of such entry, and of the matters, transactions, and accounts therein recorded.

34.   Proof that book is a banker's book

(1)  A copy of an entry in a banker's book shall not be received in evidence unless it is first proved –

(a) that the book was, at the time of the making of the entry, one of the ordinary books of the bank;

(b) that the entry was made in the usual and ordinary course of business; and

(c) that the book is in the custody and control of the bank.

(2)  Such proof may be given by a partner or manager or officer of the bank, and may be given either orally or by affidavit.

35.   Verification of copy

(1)  A copy of an entry in a banker's book shall not be received in evidence unless it is further proved that the copy has been examined with the original entry and is correct.

(2)  Such proof shall be given by some person who has examined the copy with the original entry, and may be given either orally or by affidavit.

36.   Criminal proceedings

In any criminal proceeding in which it is necessary to prove –

(a) the state of an account in the books of any bank; or

(b) that any person had not an account or any funds to his credit in such books –

it shall not be necessary to produce any such book, but evidence of the state of such account, or that no such account or funds existed, may be given by any officer or clerk of such bank who has examined such books.

37.   Cases in which banker, &c., not compellable to produce book, &c.

A banker or manager or officer of a bank shall not, in any legal proceeding to which the bank is not a party, be compellable –

(a) to produce any banker's book, the contents of which can be proved under the provisions of this Division; or

(b) to appear as a witness to prove the matters, transactions and accounts therein recorded –

unless by order of a judge.

38.   Inspection of bankers' books

(1)  On the application of any party to a legal proceeding, the court or a judge may order that such party be at liberty to inspect and take copies of any entries in a banker's book relating to the matters in question in such proceeding.

(2)  An order under this section may be made either with or without summoning the bank or any other party, and shall be served on the bank by delivering a copy of the order to an officer of such bank at a principal or a branch office thereof, having the custody of the book of which inspection is desired, 3 clear days before the same is to be obeyed, unless the court or judge otherwise directs.

(3)  Sunday, Christmas Day, Good Friday, and any bank holiday shall be excluded from the computation of time under this section.

39.   Costs

[Section 39 Amended by 25 Geo. V No. 78 ]

(1)  The costs of –

(a) any application to a court or judge under section 37 or section 38 ; or

(b) anything done or to be done under an order of a court or judge made under section 38 –

shall be in the discretion of the court or judge, who may order the same or any part thereof to be paid to any party by the bank where the same have been occasioned by any fault or delay on the part of the bank.

(2)  Any such order against a bank may be enforced as if the bank was a party to the proceeding.

40.   Affidavits, when admissible in evidence

Any affidavit to be used under the provisions of this Division shall be admissible in evidence if it purports to be sworn before a commissioner of the Supreme Court or other person authorized to take affidavits.

Division 2A - [Part III, Div. 2A Heading substituted by No. 52 of 1981, s. 4 ]Admissibility of business records made in writing

[Part III, Div. 2A Inserted by No. 9 of 1965, s. 3 ]

40A.   Admissibility of certain business records in evidence

[Section 40A Inserted by No. 9 of 1965, s. 3 ]

(1)  Subject to subsection (2) , a writing purporting to be a memorandum or record of any act, matter, or event is admissible in evidence as proof of the facts stated therein if it appears to the court or judge that –

(a) the memorandum or record was made in the regular course of a business at or about the time of the doing or occurrence of the act, matter, or event; and

(b) the source of information, and the method and time of the preparation of the memorandum or record, were such as to indicate its trustworthiness.

(2)  Subsection (1) does not require a court or judge to admit a writing in evidence if it appears to the court or judge that the interests of justice would not be served by the admission thereof.

(3)  For the purposes of this section, a court or judge, in considering whether a writing should be admitted in evidence, shall have regard to all relevant circumstances, including (but without prejudice to the generality of this subsection) –

(a) the source from which the writing is produced; and

(b) the circumstances of its receipt and custody by the person producing it or by any person from whom it has been obtained for the purpose of producing it in evidence.

(4)  In the exercise of the discretion conferred on a court or judge by this section, the court or judge is not obliged to receive formal testimony but may inform its or his mind in any way that it or he thinks fit and in particular (but without prejudice to the generality of this subsection) by the affidavit, oath, affirmation, or certificate of any person who professes to have knowledge of any of the matters to which the writing relates or of the circumstances relating to its preparation.

(5)  In this section –

business includes 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;

writing includes any photographic reproduction or photostatic reproduction of a document.

Division 2B - Admissibility of business records generally

[Part III, Div. 2B,  Inserted by No. 52 of 1981, s. 5 ]

40B.   Interpretation

[Section 40B Inserted by No. 52 of 1981, s. 5 ]

(1)  In this Division –

business includes –

(a) any business (including business as a banker), profession, occupation, calling, trade, or undertaking, whether engaged in or carried on –

(i) by the Crown in right of this State or any other right, or by a person;

(ii) for profit or not; or

(iii) in this State or elsewhere; and

(b) the public administration of the Commonwealth, or a State or Territory of the Commonwealth, or of any other country, whether carried on in this State or elsewhere;

computer means a device that is, by electronic, electro-mechanical, mechanical, or other means, capable of recording and processing data according to mathematical or logical rules and of reproducing that data or mathematical or logical consequences of that data;

court includes a judge and a person acting judicially;

data means a representation that has been transcribed by methods, the accuracy of which is verifiable, into the form appropriate to the computer into which it is, or is to be, introduced;

derived means derived, by the use of a computer or otherwise, by calculation, comparison, selection, sorting, or consolidation, or by accounting, statistical, or logical procedures;

document includes any record of information;

qualified person, in relation to a representation made in the course of or for the purposes of a business, means a person –

(a) who, at the time when the representation was made, was –

(i) an owner of the business or a person carrying on the business;

(ii) an employee, servant, or agent employed or engaged in the business;

(iii) a person retained for the purposes of the business; or

(iv) a person associated with the business in the course of another business; and

(b) who, at that time –

(i) was an expert on the subject-matter of the representation, if it is not admissible in evidence unless made by such an expert; or

(ii) had, or may reasonably be supposed to have had, personal knowledge of the fact, in any other case;

representation includes any representation of fact, whether made in words or otherwise.

(2)  For the purposes of this Division, a representation in a document is made by a person if –

(a) it is written, made, dictated, or otherwise produced by him; or

(b) it is recognized by him as his representation by signing, initialling, or otherwise.

(3)  For the purposes of this Division, a person is concerned in the making of a representation if –

(a) he made that representation; or

(b) he made a representation containing information that the representation, the admissibility of which is in question, reproduces, or from which the representation in question is derived, wholly or in part.

40C.   Admissibility generally

[Section 40C Inserted by No. 52 of 1981, s. 5 ]

(1)  Where in a legal proceeding evidence of a fact is admissible, a representation in a document of the fact is admissible as evidence of the fact, if the representation –

(a) is in a document that forms part of a record of a business, whether or not the business is in existence at the time when the question of admissibility arises;

(b) was made in the course of, or for the purposes of, the business; and

(c) was made by a qualified person or reproduces or was derived from one or other or both of the following descriptions of information:

(i) information in one or more representations, each made by a qualified person in the course of, or for the purposes of, the business; and

(ii) information from one or more devices designed for, and used for the purposes of the business in or for, recording, measuring, counting, or identifying information, not being information based on information supplied by any person.

(2)  In subsection (1) , fact includes opinion.

(3)  A representation is admissible in a legal proceeding, notwithstanding –

(a) the rules against the admissibility of hearsay evidence;

(b) the rules against the admissibility of secondary evidence of the contents of a document;

(c) that a person concerned in the making of the representation is a witness in the legal proceeding, whether or not he gives testimony consistent or inconsistent with the representation; or

(d) that the representation is in such a form that it would not be admissible if given as oral testimony –

but this section does not make admissible a representation that is otherwise inadmissible.

(4)  For the purposes of this section –

(a) a representation in a document may, in accordance with provisions contained in the rules of court made under section 40S or by leave of the court, be proved by the production of a copy of the document, or of the material part of the document;

(b) a representation in a document that is designed to be used to reproduce the representation in the form of a visible display or of sound may be proved by reproducing the representation in that form in the presence of the court; and

(c) a representation in a record of information made by the use of a computer may be proved by the production of a document produced by the use of that or another computer containing the representation in a form that can be understood by sight.

40D.   Restrictions generally on admissibility under section 40C

[Section 40D Inserted by No. 52 of 1981, s. 5 ]

(1)  Notwithstanding section 40C , a representation made or obtained for the purpose of, or in contemplation of, a legal proceeding or any other legal proceeding arising out of the same or substantially the same facts is not admissible.

(2)  Where a person proposes to tender, or tenders, a representation in evidence under section 40C , the court may require that any other document relating to the representation be produced and, in default, may reject the representation or, if it has been received, exclude it.

40E.   Restrictions on admissibility under section 40C in criminal proceedings

[Section 40E Inserted by No. 52 of 1981, s. 5 ]

(1)  Subsection (2) applies where a representation is tendered in a criminal proceeding for admission under section 40C and the representation tendered –

(a) is a representation made by a person; or

(b) reproduces or is derived from information in a representation made by a person.

(2)  A representation of a kind referred to in subsection (1) is admissible under section 40C if, as to each person concerned in the making of the representation tendered –

(a) an opposing party does not require him to be called as a witness; or

(b) it appears to the court –

(i) that he is dead or is unfit by reason of his bodily or mental condition to attend as a witness;

(ii) that it is not reasonably practicable to secure his attendance;

(iii) that all reasonable steps have been taken to identify him and he cannot be identified;

(iv) that his identity being known, all reasonable steps have been taken to find him and he cannot be found;

(v) that, having regard to the time that has elapsed since he supplied the information and to all the circumstances, he cannot reasonably be expected to have any recollection of the matters dealt with in the representation; or

(vi) that, having regard to all the circumstances of the case, undue delay or expense would be caused by calling him as a witness.

(3)  A representation made in connection with a criminal proceeding or with an investigation relating or leading to a criminal proceeding is not admissible under section 40C .

40F.   Dispute as to happening of events

[Section 40F Inserted by No. 52 of 1981, s. 5 ]

(1)  Where –

(a) the happening of an event is in question in a legal proceeding; and

(b) in the course of a business a system has been followed to make and keep a record of the happening of all events of that description –

oral or other evidence that there is no record of the happening of the event in question is admissible in the proceeding to prove that the event did not happen.

(2)  Where evidence is, or is proposed to be, tendered under subsection (1) , the court may require that the whole or part of the record concerned be produced and, in default, may reject the evidence or, if it has been received, exclude it.

(3)  For the purposes of this section, the absence of a record of the happening of an event in a record of information made by the use of a computer may be proved by the production of a document produced by the use of a computer containing a representation based on the absence of such a record.

40G.   Weight of evidence under section 40C

[Section 40G Inserted by No. 52 of 1981, s. 5 ]In estimating the weight, if any, to be attached to a representation tendered for admission or admitted under section 40C , regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or inaccuracy of the representation, including –

(a) in the case of a representation made by a person or a representation wholly or partly reproducing, or derived from, a representation made by a person –

(i) the length of time that elapsed between the making of his representation and any relevant matter dealt with in his representation; and

(ii) the presence or absence of any incentive for him to conceal or misrepresent any relevant matter in his representation;

(b) in the case of a representation wholly or in part reproducing or derived from information from one or more devices, the reliability of the device or devices; and

(c) in the case of a representation reproducing or derived from any information, the reliability of the means of reproduction or of derivation.

40H.   Weight of evidence under section 40F

[Section 40H Inserted by No. 52 of 1981, s. 5 ]In estimating the weight, if any, to be attached to evidence admitted under section 40F , regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or inaccuracy of the evidence, including whether any person concerned with the relevant system had any incentive to omit recording the happening of the event in question.

40I.   Credibility of the maker of a representation

[Section 40I Inserted by No. 52 of 1981, s. 5 ]

(1)  This section applies to a representation made by a person where –

(a) that representation, or a representation wholly or in part reproducing or derived from information in that representation, is tendered for admission or is admitted under section 40C ; and

(b) that person is not called as a witness.

(2)  Evidence is admissible in a legal proceeding if it is evidence of a kind that, if a person referred to in subsection (1) had been called as a witness, would be admissible for the purpose of destroying or supporting his credibility.

(3)  Evidence is admissible in a legal proceeding to show that a representation made by a person referred to in subsection (1) is inconsistent with another representation made at any time by him.

(4)  Notwithstanding any other provision of this section, evidence is not admissible in a legal proceeding if it is evidence of any matter of which, if a person referred to in subsection (1) had been called as a witness and denied the matter in cross-examination, evidence would not be admissible if adduced by the cross-examining party.

40J.   Inferences concerning admissibility

[Section 40J Inserted by No. 52 of 1981, s. 5 ]The court may, for the purpose of deciding questions of admissibility of evidence under this Division, draw inferences from the form or content of a document in which a representation is contained as well as from other matters from which inferences may lawfully be drawn.

40K.   Ancillary evidence

[Section 40K Inserted by No. 52 of 1981, s. 5 ]

(1)  Evidence relevant to the matters mentioned in section 40C , 40E , or 40F may be given on the basis of information and belief if it is given by –

(a) an authorized person; or

(b) a person who had, at the relevant time or afterwards, a position in relation to the making or keeping of the relevant records or information that was, in the opinion of the court, a responsible position.

(2)  Evidence given under subsection (1) may include evidence of the contents of a document, notwithstanding that the document is not produced and that its non-production is not accounted for.

(3)  In subsection (1) , authorized person means –

(a) a person before whom, under this Act, an oath, declaration, or affidavit may be taken or made in a country or place outside this State;

(b) a member of the police force of or above the rank of sergeant; or

(c) a person approved by the Attorney-General for the purposes of this section or a person belonging to a class of persons approved by the Attorney-General for those purposes.

40L.   Production of documents, &c.

[Section 40L Inserted by No. 52 of 1981, s. 5 ]

(1)  Where a person proposes to prove a representation in a document otherwise than by producing the document, the court may require that the document be produced or be made available to it or to other parties for examination or testing and, in default, may reject the representation or, if it is in evidence, exclude it.

(2)  Where a person proposes to prove a representation by reproducing the representation in the form of a visible display or of sound, the court may direct a record of the representation to be produced and, in default, may reject the representation or, if it is in evidence, exclude it.

40M.   Authentication

[Section 40M Inserted by No. 52 of 1981, s. 5 ]For the purposes of this Division, a document, a copy of a document, or a copy of part of a document may be authenticated in such manner as may be prescribed in the rules of court made under section 40S or as the court to which it is tendered approves.

40N.   Rejection for unfairness, &c.

[Section 40N Inserted by No. 52 of 1981, s. 5 ]

(1)  Where a party to a legal proceeding tenders any evidence under this Division, and it appears to the court before which the evidence is tendered that –

(a) the weight of the evidence is insufficient to justify its admission;

(b) the utility of the evidence is outweighed by a probability that its admission will unduly prolong the proceeding; or

(c) the evidence may be unfair to any other party or, if there is a jury, mislead the jury –

the court may reject the evidence or, if the evidence has been received, exclude it.

(2)  This section does not affect the admissibility of any evidence otherwise than by virtue of this Division.

40O.   Withholding statement from jury

[Section 40O Inserted by No. 52 of 1981, s. 5 ]Where –

(a) there is a jury in a legal proceeding;

(b) a representation in a document is admitted in evidence under this Division; and

(c) it appears to the court that, if the jury were to have the document before it during its deliberations, the jury might give the representation undue weight –

the court may direct that the document be withheld from the jury during its deliberations.

40P.   Corroboration

[Section 40P Inserted by No. 52 of 1981, s. 5 ]For the purposes of any Act or rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a representation admissible under section 40C shall not be treated as corroboration of evidence given by a qualified person who was concerned in the making of the representation.

40Q.   Exclusion of evidence in criminal proceedings

[Section 40Q Inserted by No. 52 of 1981, s. 5 ]This Division does not affect the power of a court in a criminal proceeding to exclude evidence in the exercise of its discretion.

40R.   Time for order

[Section 40R Inserted by No. 52 of 1981, s. 5 ]A court may make orders concerning the admissibility of any representation or evidence under this Division at any stage of a legal proceeding.

40S.   Rules of court

[Section 40S Inserted by No. 52 of 1981, s. 5 ]

(1)  The judges of the Supreme Court may make rules of court for the purpose of regulating any proceedings in or before the Supreme Court or any other court, for or with respect to any matter that is required or permitted by this Division to be prescribed or that is necessary or convenient for carrying out or giving effect to this Division.

(2)  Without limiting the generality of subsection (1) , rules of court may be made under that subsection for or with respect to all or any of the following matters:

(a) the giving to the court or to other parties of notice of a party's intention to tender a representation under section 40C or evidence under section 40F and notice of particulars of that representation or evidence (including copies of any representation or document);

(b) the giving to the court or to other parties of notice of –

(i) a party's intention to dispute a representation under section 40C or evidence under section 40F , where he has received notice of another party's intention to tender that representation or evidence; and

(ii) particulars of the grounds on which the first-mentioned party intends to dispute that representation or evidence;

(c) the production to the court or to other parties for the purpose of inspection of –

(i) a document proposed to be tendered by a party who proposes to tender a representation under section 40C or evidence under section 40F or who proposes to adduce evidence in answer to any such representation or evidence; or

(ii) a document related to any such representation or evidence that he proposes to tender;

(d) the making by a court of orders requiring a person not a party to a legal proceeding in the court to produce to the court or to parties to the proceeding for inspection a document that a party desires to inspect for the purpose of the application of this Division to the proceeding;

(e) the proof of any of the matters mentioned in section 40C , 40E , or 40F by affidavit or statutory declaration, but, unless it is not otherwise so provided, subject to any such rules providing for the attendance at the proceeding of the deponent or maker of any such affidavit or statutory declaration for cross-examination by a party who desires to cross-examine him; and

(f) the making by a court of orders under this Division at any stage of a legal proceeding.

(3)  Rules of court made under subsection (1) may apply to or in relation to courts generally or a court having such jurisdiction as is specified in those rules.

(4)  Subsection (1) does not affect a power to make rules or regulations under any other Act.

40T.   Non-application of this Division to certain representations

[Section 40T Inserted by No. 52 of 1981, s. 5 ]

(1)  On and after the commencement of the Land Titles Act 1980 , this Division does not apply to or in respect of a representation in a public record in the custody of the Recorder of Titles.

(2)  In subsection (1) , public record means a record specified in section 36 (1) of the Land Titles Act 1980 .

Division 3 - Proof of telegraphic messages

41.   Notices to admit telegraphic messages may be given in civil proceedings

(1)  Any party to any civil proceeding may, at any time after the commencement thereof, give notice to any other party that he proposes to adduce in evidence at the trial or hearing any telegraphic message that before the date of such notice shall have been received by electric telegraph in this State: Provided that –

(a) the time between the giving of such notice and the day on which such evidence shall be tendered shall not in any case be less than two days before the day of such hearing or trial; and

(b) every such notice shall specify the names of the sender and receiver of such message, and its date as nearly as may be.

(2)  Any such notice may be served, and the service thereof proved, in the same manner as notices to admit and produce may now be served and proved respectively.

42.   Proof of message

[Section 42 Amended by No. 36 of 1958, s. 4 and Sched. 3 ]

(1)  Whenever such notice is given, the production of any telegraphic message described in such notice, and purporting to have been sent by any person, together with evidence that the same was received from a telegraphic-station, shall be prima facie evidence that such message was signed and sent by the person so purporting to be the sender thereof to the person to whom the same is addressed, without any further proof of the identity of the sender.

(2)  The party against whom such message is given in evidence shall be at liberty to prove that the same was not in fact sent by the person by whom it purports to have been sent.

43.   Proof of sending a message

[Section 43 Amended by No. 36 of 1958, s. 4 and Sched. 3 ]

(1)  In any civil proceeding the production of any telegraphic message, or a copy thereof verified on oath, together with evidence that such message was taken to a telegraph-station, and that the fees, if any, for the transmission thereof were paid, shall be prima facie evidence that such message was duly delivered to the person named therein as the person to whom the same was to be transmitted; and the burden of proving that such message was not in fact received shall be upon the person against whom such message is given in evidence.

(2)  A party who proposes to adduce in evidence a telegraphic message or a copy thereof, shall, before adducing it, give notice to the other party of his intention to do so; and such notice may be given in such manner and at such times as by the practice of the court in which the proceeding is taken notices to produce or admit are required to be given.

Division 3A - .  .  .  .  .  .  .  .  

[Part III, Div 3A Inserted by No. 25 of 1966, s. 2 ][Part III, Div 3A Repealed by No. 77 of 1970, s. 32 and Sched. 2 ]

43A.   

.  .  .  .  .  .  .  .  

Division 4 - Judicial notice

44.   Judicial notice of Acts, &c., of the United Kingdom, the Commonwealth and States, and Australasian Colonies

[Section 44 Amended by No. 36 of 1958, s. 4 and Sched. 3 ]

(1)  All courts and all persons acting judicially shall take judicial notice –

(a) of the Commonwealth and the States and of every Australasian Colony, and the extent of their respective territories; and

(b) of all Acts of the Parliament of the United Kingdom and of the Commonwealth, and of any State, and of any Australasian Colony passed before or after the commencement of this Act.

(1A)  [Section 44 Subsection (1A) inserted by No. 17 of 1996, s. 36, Applied:23 Mar 1998] On and after the commencement of the Legislation Publication Act 1996 , a document or other matter purporting to be a copy of an Act or a statutory rule produced under section 6(10) of the Legislation Publication Act 1996 is to be taken in all circumstances and for all purposes to be a copy of the authorised version of the Act or statutory rule as at the date appearing on the certificate referred to in section 6(9) of the Legislation Publication Act 1996 .

(1B)  [Section 44 Subsection (1B) inserted by No. 17 of 1996, s. 36, Applied:23 Mar 1998] A statement on a document or other matter purporting to be a copy of an Act or a statutory rule produced under section 6(10) of the Legislation Publication Act 1996 that the copy has been produced with the approval of the Chief Parliamentary Counsel is evidence that it has been so produced.

(2)  [Section 44 Subsection (2) amended by No. 17 of 1996, s. 36, Applied:23 Mar 1998] Any paper purporting to be a copy of any Act of the Parliament of the United Kingdom, or of the Commonwealth, or of any State, other than this State, or of any Australasian Colony, whether passed before or after the commencement of this Act, and purporting to be printed by the Government Printer, shall, prima facie, be deemed to be a correct copy of such Act without any further proof thereof.

(3)  The date which appears on any such copy purporting to be the day on which such Act received the Royal Assent, or was proclaimed to commence, shall be received for all purposes as evidence of the date of such assent or commencement.

45.   Judicial notice of the seals of the Commonwealth and States and Australasian Colonies

[Section 45 Amended by 25 Geo. V No. 78 ]All courts and all persons acting judicially shall take judicial notice of the impression of the seal of –

(a) the Commonwealth;

(b) any State;

(c) any Australasian Colony –

without evidence of the seal having been impressed or any other evidence relating thereto.

46.   Judicial notice of official seals

When by any Act any seal or stamp is authorized to be used by any court, officer, body corporate, or any other person, judicial notice shall be taken of the impression of such seal or stamp without evidence of the same having been impressed or any other evidence relating thereto.

47.   Certain signatures to be judicially noticed

[Section 47 Amended by 25 Geo. V No. 78 ]All courts and all persons acting judicially shall take judicial notice of –

(a) the official signature of every person who holds or has held –

(i) any of the offices specified in Part I of Schedule 4 , or any office to which the Governor-General, by order published in the Commonwealth Gazette, has declared, or hereafter declares, section 4 of the Evidence Act 1905 (Commonwealth Act) shall apply; and

(ii) in any State or part or district of any State, or in any Australasian Colony or part or district of any Australasian Colony, any of the offices specified in Part II of Schedule 4 , or any office corresponding to any of the aforesaid offices, or any office to which the Governor may, at any time, by order published in the Gazette, declare this section to apply;

(b) the seal of every such court or person; and

(c) the fact that such person holds or has held such office –

if the signature or seal purports to be attached or appended to any certificate or any consent leave or approval in writing or any judicial or official document or memorandum.

Division 5 - Documents and proceedings generally

48.   Royal proclamations, orders of the Privy Council, &c.

(1)  [Section 48 Subsection (1) amended by 25 Geo. V No. 78 ]Evidence of any Royal proclamation, order of His Majesty's Privy Council, order, regulation, despatch, or any other instrument whatsoever made or issued before or after the commencement of this Act by His Majesty, or by His Majesty's Privy Council, or by or under the authority of any of His Majesty's Secretaries of State, or any department of His Majesty's Government in the United Kingdom, may be given –

(a) by the production of a copy of the London Gazette or of the Gazette of this State purporting to contain a reprint or copy of such proclamation, order of the Privy Council, order, regulation, despatch, or other instrument;

(b) by the production of a copy of such proclamation purporting to be printed by the Government Printer or under the authority of Parliament;

(c) by the production, in the case of any proclamation, order, or regulation issued by His Majesty or by the Privy Council, of a copy or extract purporting to be certified to be true by the Clerk of the Privy Council, or by any one of the Lords or others of the Privy Council, and, in the case of any proclamation, order, or regulation issued by or under the authority of any of the departments of the Government or officers mentioned in the first column of Schedule 2 , by the production of a copy or extract purporting to be certified to be true by the person specified in the second column of the said schedule in connection with such department or officer.

(2)  Any copy or extract made in pursuance of this section may be in print or in writing, or partly in print and partly in writing.

(3)  No proof shall be required of the handwriting or official position of any person certifying, in pursuance of this section, to the truth of any copy of or extract from any proclamation, order, or regulation.

(4)  [Section 48 Subsection (4) amended by 25 Geo. V No. 78 ]In this section the words Privy Council include His Majesty in Council and the Lords and others of His Majesty's Privy Council, or any of them, and any committee of the Privy Council that is not specially named in Schedule 2 .

49.   Proclamations, orders-in-council, &c.

(1)  Evidence of any proclamation, Order in Council, commission, order, regulation, appointment, or other instrument whatsoever made or issued before or after the commencement of this Act by the Governor-General of the Commonwealth, or by the Governor or Governor in Council of any State or of any Australasian Colony, or by or under the authority of any Minister of the Crown for the Commonwealth, or for any State or Australasian Colony, or of any public commission or board, or local body, or local authority, may be given in any of the following modes, that is to say:

(a) By the production of a copy of the Gazette purporting to contain the same;

(b) By the production of a document purporting to be a copy thereof, and purporting to be printed by the Government Printer or by the authority of the Government;

(c) By the production (in the case of any proclamation, order, commission, or regulation, or appointment issued or made by the Governor-General of the Commonwealth) of a document purporting to be certified by the Secretary to the Federal Executive Council as a true copy thereof or extract therefrom;

(d) By the production (in the case of any proclamation, Order in Council, commission, order, regulation, appointment, or other instrument whatsoever made or issued by the Governor of any State or of any Australasian Colony) of a copy or extract purporting to be certified by the Clerk of the Executive Council of such State or Australasian Colony;

(e) By the production (in the case of any proclamation, order, commission, regulation, appointment, or other instrument made or issued by or under the authority of any Minister of the Crown) of a document purporting to be certified as a true copy thereof or extract therefrom by any Minister of the Crown.

(1A)  [Section 49 Subsection (1A) inserted by No. 17 of 1996, s. 36, Applied:23 Mar 1998] Notwithstanding subsection (1) , on and after the commencement of the Legislation Publication Act 1996 , evidence of a statutory rule, within the meaning of the Rules Publication Act 1953 , that is on the database, within the meaning of the Legislation Publication Act 1996 , may only be given by the production of a document or other matter purporting to be a copy of the statutory rule produced under section section 6(10) of the Legislation Publication Act 1996 .

(2)  No proof shall be required of the handwriting or official position of any person certifying in pursuance of this section.

50.   Proof of proclamations and acts of State

Evidence of any proclamation or other act of State of any State may be given by the production of a copy thereof either –

(a) proved to be an examined copy thereof; or

(b) purporting to be sealed with the seal of that State.

51.   Proof of proclamations, orders, &c., by official copies

[Section 51 Amended by 25 Geo. V No. 78 ]

(1)  [Section 51 Subsection (1) amended by No. 51 of 1985, s. 4 and Sched. 2, Part III ]Evidence of any proclamation, order, regulation, or notice made or issued before or after the commencement of this Act by or under the authority of the Governor, or of the Governor in Executive Council, or of the Legislative Council or House of Assembly, or of the head of any department of the Government, or of any body or board in the first column of Schedule 3 mentioned, may be given by the production of a copy of or extract therefrom, such copy or extract purporting to be certified to be true by the person specified in the second column of the said schedule in connection with the officer, department, or board in the said first column mentioned.

(2)  [Section 51 Subsection (2) added by No. 51 of 1985, s. 4 and Sched. 2, Part III ]The amendment, omission, or substitution of the name of an officer, department, body, or board, or of a certifying officer, referred to in Schedule 3 , or the substitution of that Schedule, does not affect the admissibility in evidence of any proclamation, order, regulation, or notice referred to in subsection (1) which would have been admissible had that amendment, omission, or substitution not been made.

(3)  [Section 51 Subsection (3) inserted by No. 17 of 1996, s. 36, Applied:23 Mar 1998] Subsection (1) does not apply to a statutory rule, within the meaning of the Rules Publication Act 1953 , that is on the database, within the meaning of the Legislation Publication Act 1996 .

52.   Documents admissible in His Majesty's dominions to be admissible in this State

Every document admissible in evidence for any purpose in any court of justice in any part of His Majesty's dominions, without proof of –

(a) the seal or stamp or signature authenticating the same; or

(b) of the judicial or official character of the person appearing to have signed the same –

shall be admitted in evidence to the same extent and for the like purpose in this State, without such proof.

53.   Manner of proving acts of State, &c., of any other country

(1)  All proclamations, treaties, and other acts of State of any foreign State or of any British possession may be proved either by examined copies or by copies sealed with the seal of the foreign State or British possession to which the original document belongs.

(2)  Any copy purporting to be sealed as in this section directed shall be admitted in evidence in every case where the original document could have been so admitted, without any proof of the seal.

54.   Proclamations, &c., receivable although not proved by sealed copies

[Section 54 Amended by 25 Geo. V No. 78 ]Proclamations, international treaties, and Orders in Council of any country, although not proved in the manner provided by section 53 , may, nevertheless, be received in evidence if the court or person adjudicating considers the same to be authentic.

55.   Proof of other public documents

(1)  Whenever in any part of His Majesty's dominions any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, any copy thereof or extract therefrom shall be admissible in evidence if –

(a) it is proved to be an examined copy or extract; or

(b) it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted.

(2)  [Section 55 Subsection (2) amended by No. 55 of 1965, s. 5 ]Every officer to whose custody the original of any book or document of such a public nature as aforesaid is entrusted in Tasmania is hereby required to furnish a certified copy of such book or extract therefrom to any person applying at a reasonable time, and paying a reasonable sum for the same, not exceeding 5 cents for every folio of 72 words.

56.   Votes and proceedings of Parliament

All documents purporting to be copies of the votes and proceedings of either House of the Parliament of the United Kingdom, or of the Commonwealth, or of any State, or of any Australasian Colony, if purporting to be printed by the Government Printer, shall, on the mere production of the same, be admitted as evidence.

57.   Proof of seal, signature, and official character dispensed with

[Section 57 Amended by 25 Geo. V No. 78 ]

(1)  Whenever by this Act, or by any Imperial Act, or any Act of the Parliament of any State or of any Australasian Colony –

(a) any certificate;

(b) any official or public document;

(c) any document or proceeding of any corporation or joint stock or other company; or

(d) any copy of or extract from any document or by-law, or entry in any register or other book, or of or from any other proceeding –

is admissible in evidence in any legal proceeding in the United Kingdom or in the particular State or Colony, the same shall respectively be admitted in evidence in Tasmania if it purports to be certified or sealed, or impressed with a stamp, or sealed and signed, or signed alone, or impressed with a stamp and signed, as directed by such Act.

(2)  In any such case no proof shall be required –

(a) of the seal or stamp, where a seal or stamp is necessary;

(b) of the signature; or

(c) of the official character of the person appearing to have signed the same –

or otherwise in relation thereto.

58.   Magistrate or justice of the peace

[Section 58 Subsection (1) amended by No. 14 of 1976, s. 3 ]

(1)  [Section 58 Subsection (1) amended by No. 108 of 1974, s. 38 and Sched. 1 ]The word "Magistrate" after the signature to any magisterial act shall be prima facie evidence that the person whose signature it purports to be is a magistrate having jurisdiction in the matter.

(2)  The words "Justice of the Peace" or the letters "J.P." after the signature to any magisterial act shall be prima facie evidence that the person whose signature it purports to be is a justice of the peace having jurisdiction in the matter.

(3)  [Section 58 Subsection (3) amended by 25 Geo. V No. 78 ]When a justice is described as a justice of the peace for the State of Tasmania, such description shall, unless the contrary intention appears, be taken to mean that he is a justice of the peace for the State generally.

59.   Certified copy of map, &c., to be admissible in evidence, &c.

[Section 59 Substituted by No. 75 of 1982, s. 3 ]

(1)  Where a prescribed officer gives a certificate to the effect that any map, photograph, or document is a copy of an original map, photograph, or document that is kept in his custody or is kept in the central plan office, that copy is admissible in evidence in any legal proceeding and, until the contrary is proved, is evidence –

(a) in the case of a copy of a map – of the existence and location of any natural or man-made feature, boundary, or place depicted, delineated, shown, or described in the original map;

(b) in the case of a copy of a photograph – of the scene of which the original photograph purports to be a record; or

(c) in the case of a copy of a document – of the contents of the original document.

(2)  Where an original photograph referred to in subsection (1) is endorsed with a statement which specifies the time and date at which, and the place from which, the photograph purports to have been taken and the name of the person who purports to have taken the photograph and which purports to be signed by that person, a copy of that endorsement is admissible in any legal proceeding and, until the contrary is proved, is evidence of its contents.

(3)  Where a surveyor within the meaning of the Survey Co-ordination Act 1944 gives a certificate to the effect that a map was made from an actual survey, that map shall, until the contrary is proved, be presumed to have been so made.

(4)  All courts and persons acting judicially shall take judicial notice –

(a) of the signature of a prescribed officer in a certificate referred to in subsection (1) ; and

(b) of the signature of a surveyor in a certificate referred to in subsection (3) .

(5)  For the purposes of this section –

central plan office means the central plan office established under the Survey Co-ordination Act 1944 ;

document includes –

(a) any material or thing on which there is writing or other representation, or on which there are marks, symbols, or perforations having a meaning for persons who are qualified to interpret them; and

(b) a recording –

and also includes a part of a document;

map includes a plan and a chart and, in particular, includes an aerial map prepared by photogrammetric means;

prescribed officer means –

(a) the Director-General of Lands;

(b) the Surveyor-General; or

(c) any other person who holds an office prescribed in an order made under subsection (6) for the purpose of this paragraph;

survey has the meaning assigned to that expression by section 2 of the Survey Co-ordination Act 1944 .

(6)  The Governor may, by order-in-council, prescribe an office as an office for the purpose of paragraph (c) of the definition of prescribed officer in subsection (5) .

60.   Certificate of analyst to be evidence

[Section 60 Inserted by No. 27 of 1991, s. 4 ]

(1)  [Section 60 Subsection (1) amended by No. 38 of 1996, s. 4 ]In any proceedings in a court, a document purporting to be a certificate signed by an analyst and relating to any analysis is evidence of the facts stated in that document –

(a) if the party to the proceedings who tenders the document has served the other party to the proceedings with a copy of that document not less than 14 days before the hearing; and

(b) unless a party who has been so served with a copy of that document has given notice –

(i) in writing; and

(ii) not less than 7 days before the hearing; and

(iii) to the party who has tendered that document –

that the analyst or a person who, under the supervision or direction of the analyst, was involved with the analysis is required to be called as a witness.

(2)  [Section 60 Subsection (2) amended by No. 38 of 1996, s. 4 ]In this section –

analysis includes examination, testing, handling and storage done by, or under the supervision or direction of, an analyst;

analyst means –

(a) the Government Analyst; or

(b) an analyst appointed for the purposes of any Act of the Commonwealth, of a State or Territory or of any other jurisdiction; or

(c) a person appointed, authorized or otherwise determined for the purposes of any such Act to perform an analysis; or

(d) any other person who has the appropriate qualifications or experience to perform an analysis.

60A.   Certificate of Surveyor-General to be evidence

[Section 60A Inserted by No. 25 of 1994, s. 45 and Sched. 3 ]

(1)  In this section –

Crown land has the same meaning as in the Crown Lands Act 1976 ;

State forest has the same meaning as in the Forestry Act 1920 ;

Surveyor-General means the person appointed as Surveyor-General under the Survey Co-ordination Act 1944 .

(2)  In any proceedings, a certificate purporting to be signed by the Surveyor-General relating to one or more of the following matters is evidence of those matters:

(a) that at a time or during a period specified in the certificate land described in the certificate was or was not Crown land;

(b) that at a time or during a period specified in the certificate land described in the certificate was or was not State forest;

(c) that at a time or during a period specified in the certificate the Crown land described in the certificate was or was not dedicated or reserved for a particular purpose under any Act;

(d) that at a time or during a period specified in the certificate the Crown land described in the certificate was subject to a contract or a permit, lease, licence or other occupational right under the Crown Lands Act 1976 .

(3)  For the purposes of subsection (2) , land may be described by means of a description or a plan, or both.

60B.   Certificate of Chief Parliamentary Counsel to be evidence

[Section 60B Inserted by No. 17 of 1996, s. 36, Applied:23 Mar 1998] A certificate of the Chief Parliamentary Counsel that an Act or statutory rule is not on the database, within the meaning of the Legislation Publication Act 1996 , is to be taken in all circumstances and for all purposes to be evidence of that fact.

61.   Secondary evidence of a registered deed or document, &c.

(1)  Secondary evidence of any deed or document registered in or deposited for safe custody in the office of the Registrar of Deeds, or filed, entered, registered, recorded, or enrolled in the Supreme Court, or in the Lands' Titles Office, or any other public office under the provisions of any Act, may be given by the production of an office copy of such deed or document, if reasonable notice in writing has been given to the adverse party by the party producing the same.

(2)  Evidence of the contents of any memorial of a deed or document so registered in the office of the Registrar of Deeds may be given by the production of an office copy of such memorial, if such notice as aforesaid has been given.

62.   Probate and letters of administration

[Section 62 Substituted by 12 Geo. V No. 3, s. 2 ]

(1)  The probate of a will, or codicil, or letters of administration with the will or codicil annexed, obtained or having operation within Tasmania, shall be prima facie evidence of the original will or codicil upon all questions concerning real and personal estate, in like manner as if such original were produced and proved in due course of law.

(2)  Every probate, letters of administration, or letters of administration with the will or codicil annexed, shall in all cases be prima facie evidence of the death and the date of the death of the testator or intestate.

(3)  [Section 62 Subsection (3) amended by 25 Geo. V No. 78 ]In this section the expressions probate, letters of administration, or letters of administration with the will or codicil annexed, include –

(a) an exemplification of probate, or of letters of administration, or of letters of administration with the will or codicil annexed, as the case may be, sealed by the Supreme Court in its ecclesiastical jurisdiction, or under Part VI of the Administration and Probate Act 1935 ;

(b) any document accepted as sufficient in lieu of such exemplification by the Supreme Court, and sealed as aforesaid.

63.   Application for probate, &c., to be taken as conclusive evidence of death

[Section 63 Amended by No. 36 of 1958, s. 4 and Sched. 3 ]

(1)  In any case where –

(a) direct evidence of the death of a testator or intestate is not forthcoming; and

(b) any claim in relation to any property or assets whatsoever forming part of his estate is disputed on the ground that there is not sufficient evidence to establish his death as a fact –

it shall be lawful for a judge of the Supreme Court sitting in chambers, upon the application by or on behalf of the executor or administrator of the testator or intestate, in a summary way, to call upon any person disputing the sufficiency of the evidence as to the death to appear before him and show cause why the probate of the will of the testator, or letters of administration of the estate of the intestate, as the case may be, should not be conclusive evidence of the death of the testator or intestate, as the case may be.

(2)  Upon the hearing of any such application the judge may make such order in the matter, including any order as to costs, as he may think fit.

(3)  Every such application shall be made by ordinary summons in chambers; but the judge may, if he thinks fit, adjourn the summons into court.

64.   Births, marriages, and deaths

[Section 64 Amended by 12 Geo. V No. 3, s. 3 ][Section 64 Amended by 25 Geo. V No. 78 ]

(1)  [Section 64 Subsection (1) amended by No. 91 of 1974, s. 3 ]A –

(a) copy of a register, or of an entry in a register, certified under the hand of the Registrar-General, or any registrar; or

(b) certificate under the hand of such Registrar-General, or of such registrar, and sealed or stamped with the seal of his office –

relating to any birth, marriage, or death shall be evidence of the fact of such birth, marriage, or death, and of the particulars contained in such copy or certificate respecting such birth, marriage, or death.

(2)  A certificate of the birth, marriage, or death of any person in any part of the British dominions other than Tasmania, if it purports to be issued by the officer authorized by the law in that behalf of such part of the said dominions, shall be evidence of the matters stated in such certificate, without proof of the seal or stamp or signature, or of the official character of the person appearing to have signed the same.

(3)  A certificate under the hand of the Registrar-General that any original register of births, marriages, or deaths, for any specified period and for any particular district, is lost or destroyed shall be conclusive evidence of that fact.

(4)  [Section 64 Subsection (4) substituted by No. 91 of 1974, s. 3 ][Section 64 Subsection (4) amended by No. 68 of 1994, s. 3 and Sched. 1 ]Where the adoption of a person is entered in –

(a) the special record kept under section 22F (1) (c) of the Registration of Births and Deaths Act 1895 ; or

(b) the register of adoptions kept by the Registrar-General for the purposes of the Adoption Act 1988 and particulars of the adoption have not been entered in that special record pursuant to section 22F (3) (a) of the first-mentioned Act –

a copy of, or certificate relating to, the entry in the special record or register, as the case may be (being a copy or certificate that is authenticated as provided by subsection (1) ) is evidence of the adoption of that person by the person stated in the copy or certificate as having adopted him, and of the date of the adoption as appearing in the copy or certificate.

(5)  [Section 64 Subsection (5) added by No. 91 of 1974, s. 3 ]A copy of a deed poll registered under Part V of the Registration of Births and Deaths Act 1895 , being a copy certified under the hand of the Registrar-General, is evidence of the contents of the deed poll and of its due execution.

65.   Statutes of any country published by authority

[Section 65 Amended by No. 17 of 1996, s. 36, Applied:23 Mar 1998] Books purporting to have been printed or published, whether before or after the commencement of this Act, under the authority of the Government of the Commonwealth, or of any State, other than this State, or of any country whatsoever, or by the printer to such government, and purporting to contain statutes, ordinances, or other written laws in force in such Commonwealth, State, or country, shall, on production, be admitted and received as prima facie evidence of such laws.

66.   Certain law books may be referred to as evidence of laws

[Section 66 Amended by 25 Geo. V No. 78 ]Printed books purporting to contain statutes, ordinances, or other written laws in force in the Commonwealth, or any State, or in any country whatsoever, although not purporting to have been printed or published by authority as aforesaid, books purporting to contain reports of decisions of courts or judges in the Commonwealth, State, or country, and text books treating of the laws of the Commonwealth, State, or country, may be referred to for the purpose of ascertaining the laws in force in the Commonwealth, State, or country; but the courts or persons adjudicating shall not be bound to accept or act on the statements in any such books as evidence of such laws.

67.   Standard works of general literature

All courts and persons acting judicially may, in matters of public history, literature, science, or art, refer, for the purposes of evidence, to such published books, maps, or charts as such courts or persons consider to be of authority on the subjects to which they respectively relate.

68.   Machine copies to be evidence

When any writing whatsoever has been copied by means of any machine or press or operation which produces a facsimile impression or copy of such writing, such impression or copy shall, upon proof to the satisfaction of the court or person acting judicially that the same was taken or made from the original writing by means of such machine or press or operation as aforesaid, be evidence of such writing, without any proof that such impression or copy was compared with the said original thereof, and without any notice to produce such original.

Division 5A - Reproductions of documents

[Part III, Div 5A Inserted by No. 65 of 1976, s. 3 ]

Subdivision I - Preliminary

68A.   Interpretation

[Section 68A Inserted by No. 65 of 1976, s. 3 ]In this Division, unless the contrary intention appears –

affidavit includes statutory declaration;

approved official has the meaning assigned to that expression by section 68B ;

business has the meaning assigned to that expression by section 40A (5) ;

certificate includes a photograph of a certificate;

document includes part of a document;

machine copy, in relation to a document, means a copy of the document –

(a) made by machine wherein, or made by a process whereby, a latent image of the contents of the document is produced from surface contact with the document or by the use of photo-sensitive material other than transparent photographic film; or

(b) made by the electrostatic process known as Xerography or any similar process;

original document includes a copy of an original document (whether it is a sealed or stamped copy or not) that is admissible in evidence;

reproduction, in relation to a document, means a machine copy of the document or a print made from a transparency of the document, and reproduce has a corresponding meaning;

transparency, in relation to a document, means –

(a) a developed negative or positive photograph of that document (in this definition referred to as "an original photograph") made, on a transparent base, by means of light reflected from, or transmitted through, the document;

(b) a copy of an original photograph made by the use of photo-sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with the original photograph; or

(c) any one of a series of copies of an original photograph, the first of the series being made by the use of photo-sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with a copy referred to in paragraph (b) , and each succeeding copy in the series being made, in the same manner, from any preceding copy in the series.

Subdivision II - Reproduction of official documents

68B.   Certified reproductions of certain official documents, &c., admissible without further proof, &c.

[Section 68B Inserted by No. 65 of 1976, s. 3 ][Section 68B Subsection (3) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 68B Subsection (3) amended by No. 68 of 1994, s. 3 and Sched. 1 ]

(1)  A document that purports to be a copy of an original document is, without further proof, admissible in evidence in a legal proceeding as if it were the original document of which it purports to be a copy, if it bears or is accompanied by a certificate, purporting to have been signed by an approved official or by some other officer acting on his behalf, that it is a reproduction of an original document that was in the proper custody of the approved official –

(a) where the reproduction is a machine copy, at the time when the machine copy was made; or

(b) where the reproduction is a print made from a transparency, at the time when the transparency was made.

(2)  Where an approved official is served with a legal process to produce a document in a court or before a person acting judicially, it is sufficient answer to that process if the official to whom the process is addressed sends by prepaid post or causes to be delivered to the Registrar or proper officer of the court or person concerned a reproduction of the document bearing or accompanied by such a certificate as is referred to in subsection (1) .

(3)  [Section 68B Subsection (3) amended by No. 57 of 1985, s. 4 and Sched. 2 ]In this section –

approved official means –

(a) the Registrar-General, the Recorder of Titles, the Registrar of Deeds, the Government Statistician, the State Archivist, the administrator of the Tasmanian Film Corporation, the Commissioner of Police, or an Assistant Commissioner of Police;

(b) where an original document to which this section relates is a document filed in a court or the official record of a legal proceeding, the Registrar or other proper officer of the court which the document was before or before which the legal proceeding took place; or

(c) any other official declared by the Attorney-General, by order, to be an approved official for the purposes of this section;

in the proper custody, in relation to an original document, means –

(a) if the document is in the Archives Office, in the custody of the State Archivist; or

(b) in any other case, in the custody or under the control of the appropriate approved official.

68C.   Non-application of Subdivision III

[Section 68C Inserted by No. 65 of 1976, s. 3 ] Subdivision III does not apply to or in respect of a reproduction of a document referred to in this Subdivision.

Subdivision III - Reproduction of business documents

68D.   Admissibility of reproductions of business documents that are destroyed, lost, or unavailable

[Section 68D Inserted by No. 65 of 1976, s. 3 ]

(1)  Subject to this Division, a document that purports to be a copy of an original document made or used in the course of a business is, upon proof that it is a reproduction made in good faith and –

(a) that the original document has been destroyed or lost, whether wholly or in part; or

(b) that it is not reasonably practicable to produce the original document or to secure its production –

admissible in evidence in any legal proceeding to the extent to which the contents of the original document of which it purports to be a copy would have been admissible.

(2)  Subject to proof of the same matters as are referred to in subsection (1) , where a person is served with legal process to produce a document made or used in the course of a business, in a court or before a person acting judicially, it is sufficient answer to that process if the person to whom the process is addressed produces a document that purports to be a copy of the original document.

(3)  Without prejudice to any other mode of proof, an affidavit purporting to have been made by a person at or about the time he made a machine copy of, or photographed, a document –

(a) stating his full name, address, and occupation;

(b) identifying or describing the document and indicating whether the document is itself a reproduction;

(c) stating the day on which he made the machine copy or photograph, the condition of the document at that time with respect to its legibility, and the extent of any damage thereto;

(d) describing the machine or process by which he made the machine copy or photograph;

(e) stating that the making of the machine copy or photograph was properly carried out in the ordinary course of business by the use of apparatus and materials in good working order and condition; and

(f) stating that the machine copy or photograph is a machine copy or photograph made in good faith –

is evidence, whether that person is available to be called as a witness or not, that the machine copy or transparency of the document referred to in the affidavit is a machine copy or transparency made in good faith, and is, in the case of a machine copy, a reproduction of the document or can, in the case of a transparency, be used to produce such a reproduction.

68E.   Evidentiary provisions relating to prints made from transparencies of original documents

[Section 68E Inserted by No. 65 of 1976, s. 3 ]

(1)  Subject to this Division, but in addition to, and without derogating from, the provisions of section 68D (1) and (2) , a print made from a transparency of an original document (being a document made or used in the course of a business) is admissible in evidence in a legal proceeding to the extent to which the contents of the original document would have been admissible, whether the document is still in existence or not, on proof that the transparency was made in good faith and the print is a print of the image on the transparency.

(2)  Subject to this section and without prejudice to any other mode of proof, a certificate purporting to have been made by a person at the time at which he photographed a document –

(a) stating his name, address, and occupation;

(b) identifying or describing the document;

(c) stating the day on which the document was photographed; and

(d) bearing his signature –

is evidence, whether that person is available to be called as a witness or not, that the transparency is a photographic copy of the document referred to in the certificate and that it was made in good faith.

(3)  Where a person photographs more than one document on any one day, he is required to make only one certificate for the purposes of subsection (2) in relation to those documents.

(4)  A person who makes a certificate for the purposes of subsection (2) that relates to more than one document shall photograph the certificate both when he commences to photograph the documents and when he has finished photographing them.

68F.   Affidavits of makers of prints from transparencies to be evidence

[Section 68F Inserted by No. 65 of 1976, s. 3 ]Without prejudice to any other mode of proof, an affidavit purporting to have been made by a person at or about the time he made a print from a transparency of a document –

(a) stating his full name, address, and occupation;

(b) identifying the transparency;

(c) stating the day on which the print was made, the condition of the transparency, and the extent of any damage thereto;

(d) describing the process or procedure by which he made the print;

(e) stating that the printing was properly carried out by the use of equipment and materials in good working order and condition with the object of reproducing the whole of the image on the transparency; and

(f) stating that the print was made in good faith –

is evidence, whether that person is available to be called as a witness or not, that the print was made in good faith and reproduces the whole of the image on the transparency.

68G.   Proof where documents processed by independent processors

[Section 68G Inserted by No. 65 of 1976, s. 3 ]Where a person who has the possession, custody, or control of a document –

(a) delivers the document, or causes it to be delivered, to another person (in this section referred to as "the processor") whose business is, or includes, the reproduction or photographing of documents for other persons; and

(b) subsequently receives from the processor –

(i) a machine copy or transparency of the document; and

(ii) an affidavit by the processor under section 68D or a certificate by him under section 68E –

an affidavit made by the first-mentioned person at or about that time giving particulars of his possession, custody, or control of the document, its delivery to the processor and his receipt of the document and the machine copy or transparency from the processor, is admissible in evidence of the facts stated therein, whether the first-mentioned person is available to be called as a witness or not.

68H.   Reproduction not to be admitted as evidence unless transparency in existence

[Section 68H Inserted by No. 65 of 1976, s. 3 ]A reproduction made from a transparency shall not be admitted as evidence pursuant to this Subdivision in any legal proceeding, unless the court or person acting judicially is satisfied that the transparency is in existence at the time of the legal proceeding.

68J.   Proof of destruction of documents, &c.

[Section 68J Inserted by No. 65 of 1976, s. 3 ]A statement by a person in an affidavit made for the purposes of this Subdivision –

(a) that he destroyed or caused the destruction of a document;

(b) that after due search and inquiry a document cannot be found;

(c) that, for the reasons specified in the affidavit, it is not reasonably practicable to produce a document or secure its production; or

(d) that a document was made or was used in the course of his or his employer's business –

is evidence of the fact or facts stated, whether that person is available to be called as a witness or not.

68K.   One certificate sufficient in certain circumstances

[Section 68K Inserted by No. 65 of 1976, s. 3 ]

(1)  This section applies to and in respect of transparencies of a series of documents that –

(a) bear or have been given serial numbers;

(b) bear or have been marked with the same kind of distinctive identification mark; or

(c) purport from their contents to relate to the same subject-matter, to the same person or persons, or to a matter between persons –

where the documents are photographed on a continuous length of film or, where the documents are marked in accordance with paragraph (a) or paragraph (b) , on separate films.

(2)  For the purposes of subsection (1) , continuous length of film means a film with no joints or splices throughout its length.

(3)  A certificate made pursuant to section 68E shall be deemed to be a certificate in respect of all or any of the transparencies of a series of documents to which this section applies if it is photographed as part of the series and, in lieu of identifying or describing each individual document photographed, it states the general nature of the documents in the series and –

(a) the serial numbers of the first and last document in the series;

(b) the distinctive identification mark; or

(c) the person or persons, or the matter between the persons, to which the documents refer –

as the case may require.

(4)  Notwithstanding anything contained in this Division, a print that purports to be made from a transparency of a certificate referred to in subsection (3) is admissible in evidence in a legal proceeding as if it were the certificate from which the transparency was made, if –

(a) it is produced or tendered with a print made from a transparency of a document in the series to which the certificate relates; and

(b) an affidavit under section 68F relating to both prints is also produced or tendered.

68L.   Admissibility of copies of affidavits and certain certificates

[Section 68L Inserted by No. 65 of 1976, s. 3 ]A copy of –

(a) an affidavit relating to the reproduction of a document; or

(b) a certificate made pursuant to section 68E and to which section 68K (3) does not apply –

is, unless the court or person acting judicially otherwise orders, admissible in evidence in a legal proceeding as if it were the affidavit or certificate of which it is a copy.

68M.   Discovery, inspection, and production where documents destroyed or lost

[Section 68M Inserted by No. 65 of 1976, s. 3 ]

(1)  This section applies to –

(a) a transparency of a destroyed or lost document, where a print made from the transparency would, subject to compliance with the conditions prescribed by this Division, be admissible in evidence in a legal proceeding; and

(b) an affidavit or a certificate that would be evidence or, where, in the case of a certificate, the certificate is itself in the form of a transparency, that could be the means of providing evidence, pursuant to this Act, of compliance with those conditions in so far as they relate to the making of the transparency and the destruction or loss of the document.

(2)  Where a person has the possession, custody, or control of a transparency and an affidavit or a certificate to which this section applies and, but for the destruction or loss of the document from which the transparency was made, would be required by any law, order of court, practice, or usage –

(a) to give discovery of the document;

(b) to produce the document for inspection;

(c) to permit the making of a copy of the document or the taking of extracts therefrom; or

(d) to supply a copy of the document –

that law, order, practice, or usage shall, subject to this section, be deemed to extend to the transparency and affidavit or certificate.

(3)  For the purposes of this section –

(a) the obligation imposed by this section in respect of a requirement referred to in subsection (2) (b) shall be deemed to include an obligation –

(i) to provide proper facilities for reading the image on the transparency, and, where, in the case of a certificate, it is itself in the form of a transparency, the image on the transparency of the certificate; or

(ii) to produce for inspection a print made from the transparency and, where, in the case of a certificate, it is itself in the form of a transparency, a print made from the transparency of the certificate, together, in each case, with an affidavit that would be evidence under section 68F , that the print was made in good faith and reproduces the image on the transparency; and

(b) the obligation imposed by this section in respect of a requirement referred to in subsection (2) (d) shall be deemed not to include an obligation to supply a copy of any transparency but to include an obligation to supply the print and affidavit or certificate, or, as the case may require, the prints, certificate, and affidavit, referred to in paragraph (a) (ii) .

(4)  Where any person has the possession, custody, or control of a transparency and an affidavit or a certificate to which this section applies and is required by legal process issued by a court to produce to the court the document from which the transparency was made, that legal process shall be deemed to require the production by him of –

(a) a print made in good faith, that reproduces the image on the transparency; and

(b) the affidavit or certificate or, where, in the case of a certificate, the certificate is itself in the form of a transparency, a print, made in good faith, that reproduces the image on the transparency of the certificate.

(5)  A reference in this section to an affidavit or certificate includes a reference to a copy thereof.

Subdivision IV - General provisions

68N.   Further reproduction may be ordered by court, &c.

[Section 68N Inserted by No. 65 of 1976, s. 3 ]

(1)  Subject to this section, where a print made from a transparency is tendered in evidence in a legal proceeding pursuant to the provisions of this Division and –

(a) the court or person acting judicially is not satisfied that the print is a legible copy of the original document; or

(b) a party to the legal proceeding questions the authenticity of the print and applies for an order under this section –

the court or a person acting judicially may reject the print tendered and order that a further print be made from a transparency of the original document.

(2)  A further print made in compliance with an order –

(a) under subsection (1) (a) shall be made at the cost of the party who tendered the rejected print; or

(b) under subsection (1) (b) shall be made in the presence of a person appointed for the purpose by the court or a person acting judicially and at the cost of the party who applied for the order.

(3)  Where a print to which Subdivision II relates is rejected under this section, a print made in compliance with an order under subsection (1) shall be made in the same premises as the rejected print or, where that is not practicable, in accordance with directions given by the court or person acting judicially.

68P.   Colours and tones of reproductions

[Section 68P Inserted by No. 65 of 1976, s. 3 ]

(1)  A reproduction of a document or a print made from a transparency shall be deemed to be a copy of a document notwithstanding –

(a) that, in the process by which the reproduction or transparency was made, the colours or tones appearing on the original document are altered or reversed in the reproduction or transparency; or

(b) that any number or mark of identification added for the purposes of section 68K appears in the reproduction or transparency.

(2)  A document may be certified under Subdivision II to be a reproduction of an original document, notwithstanding that –

(a) any writing or representation describing or identifying colours in the original document appears in the reproduction; or

(b) any colours appearing in the reproduction were added after it was made and before certification.

68Q.   Notice to produce and proof of comparison not required

[Section 68Q Inserted by No. 65 of 1976, s. 3 ]

(1)  Where a reproduction of a document is admissible in evidence pursuant to this Division, it is admissible without a notice to produce the document of which it is a reproduction.

(2)  Where a reproduction of a document is tendered as evidence pursuant to this Division, no proof is required that the reproduction was compared with the original document.

68R.   Presumptions as to old documents

[Section 68R Inserted by No. 65 of 1976, s. 3 ]Any presumption that may be made with respect to a document over 30 years old may be made with respect to a reproduction of that document admitted in evidence under this Division in all respects as if the reproduction were the document.

68S.   Reproductions made in other States, &c.

[Section 68S Inserted by No. 65 of 1976, s. 3 ]Where a reproduction that is made of a document in another State or in a Territory of the Commonwealth would be admissible in evidence in that State or Territory under a law of that State or Territory –

(a) that corresponds with this Division; or

(b) that the Attorney-General, by order, declares to correspond with this Division –

the reproduction is admissible in evidence in a legal proceeding in this State in the same circumstances, to the same extent, and for the like purpose as it would be admissible in evidence in a legal proceeding in that State or Territory under the law of that State or Territory.

68T.   Judicial notice

[Section 68T Inserted by No. 65 of 1976, s. 3 ]Where any Act or law requires a court or person acting judicially to take judicial notice of the seal or signature of a court or person appearing on a document and a reproduction of that document is, pursuant to this Division, admitted in evidence in a legal proceeding, the court or person acting judicially shall take judicial notice of the image of the seal or signature on the reproduction to the same extent as it would be required to take judicial notice of the seal or signature on the document.

68U.   Court may reject reproductions

[Section 68U Inserted by No. 65 of 1976, s. 3 ]Notwithstanding anything contained in this Division, a court or person acting judicially may refuse to admit in evidence a reproduction tendered pursuant to this Division if it or he considers it expedient in the interests of justice to do so as a result of any reasonable inference drawn by the court or person acting judicially from the nature of the reproduction, the machine or process by which it was made or, in the case of a print from a transparency, by which the transparency was made, and any other circumstances.

68V.   Weight of evidence

[Section 68V Inserted by No. 65 of 1976, s. 3 ]In estimating the weight of evidence to be attached to a reproduction admitted in evidence pursuant to this Division, regard shall be had to the fact that, if the person making an affidavit or a certificate pursuant to this Division is not called as a witness, there has been no opportunity to cross-examine him, and to all the circumstances from which any inference can reasonably be drawn as to –

(a) the necessity for making the reproduction or, in the case of a print from a negative, the negative, or for destroying or parting with the document reproduced;

(b) the accuracy or otherwise of the reproduction; and

(c) any incentive to tamper with the document or to misrepresent the reproduction.

68W.   Transparencies, &c., may be preserved in lieu of documents

[Section 68W Inserted by No. 65 of 1976, s. 3 ]

(1)  [Section 68W Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]Where any Act or law or duty or obligation that requires an approved official to preserve or keep a document to which Subdivision II applies does not provide for a copy of the document to be preserved or kept in lieu of that document, it is a sufficient compliance with that requirement if the official –

(a) preserves or keeps a transparency thereof in lieu of the document; and

(b) complies with the provisions of the Archives Act 1983 with respect to the destruction or disposal of the document.

(2)  [Section 68W Subsection (2) amended by No. 68 of 1994, s. 3 and Sched. 1 ]Where any Act passed before or after the commencement of this Division requires a document to which Subdivision III applies to be preserved or kept for any period, not being less than 3 years, it is sufficient compliance with that requirement –

(a) to preserve or keep in lieu of that document –

(i) a transparency of the document, being a transparency; and

(ii) an affidavit or a certificate relating to the transparency, being an affidavit or a certificate –

to which section 68G applies; and

(b) in the case of a document that is a State record within the meaning of the Archives Act 1983 , if the document is disposed of or destroyed in accordance with that Act.

(3)  [Section 68W Subsection (3) omitted by No. 68 of 1994, s. 3 and Sched. 1 ].  .  .  .  .  .  .  .  

68X.   Provisions of Division in aid of other similar laws

[Section 68X Inserted by No. 65 of 1976, s. 3 ]The provisions of this Division shall be construed as in aid of, and not in derogation from, any other law or any practice or usage with respect to the production to a court or person acting judicially or to the admissibility in evidence in a legal proceeding of reproductions of documents.

68Y.   Stamp duty

[Section 68Y Inserted by No. 65 of 1976, s. 3 ]Notwithstanding the provisions of this Division, where stamp duty under the Stamp Duties Act 1931 is payable on a document, a reproduction of the document is not admissible in evidence under this Division unless the reproduction of the document shows or establishes to the satisfaction of the court or person acting judicially that it has been stamped and is admissible in accordance with section 28 of the Stamp Duties Act 1931 .

68Z.   Power of Attorney-General to exclude provisions of Division

[Section 68Z Inserted by No. 65 of 1976, s. 3 ]The Attorney-General may by order exclude the operation of this Division or any Subdivision thereof in respect of any particular document or particular class of document.

68ZA.   Regulations

[Section 68ZA Inserted by No. 65 of 1976, s. 3 ]

(1)  The Governor may make regulations for the purposes of this Division.

(2)  Without prejudice to the generality of subsection (1) , the regulations may make provision for or with respect to –

(a) the manner of executing documents that are intended to be placed in the proper custody of approved officials; and

(b) the material used to effect the execution of those documents.

Division 5B - Photographs

[Part III, Div. 5B Inserted by No. 60 of 1982, s. 2 ]

68ZB.   Admissibility of photographs

[Section 68ZB Inserted by No. 60 of 1982, s. 2 ]Where a person who operated a camera, device, or other instrument for the purpose of photographing a scene or subject gives evidence in any legal proceeding that a photographic print (other than a transparency to which Division 5A applies) appears to be a print of the scene or subject which he photographed, the print shall, on the giving of that evidence, be admissible in evidence in that legal proceeding.

Division 6 - Proof of certain official documents and matters

69.   Proof of Gazette

The mere production of a paper purporting to be the London Gazette, the Edinburgh Gazette, the Dublin Gazette, the Commonwealth of Australia Gazette, or the Gazette of any State or of any Australasian Colony, shall be evidence that the paper is such Gazette, and was published on the day on which it bears date.

70.   Proof of printing by Government Printer

The mere production of a paper purporting to be printed by the Government Printer, or by the authority of the Imperial Government, or the Government of the Commonwealth, or of any State, or of any Australasian Colony, shall be evidence that the paper was printed by the Government Printer or by such authority.

71.   Documents printed under authority of Stationery Office

[Section 71 Amended by 25 Geo. V No. 78 ]Where by this Act or any other Act it is provided that a copy of any Act, proclamation, order, regulation, rule, warrant, circular, list, Gazette, or document, shall be conclusive evidence or have any other effect when purporting to be printed by the Government Printer, or the King's Printer, or a printer authorized by His Majesty, whatever may be the precise expression used, such copy shall also be conclusive evidence, or evidence, or have the said effect, as the case may be, if it purports to be printed under the superintendence or authority of His Majesty's Stationery Office.

72.   Proof of act done by Governor or Minister

[Section 72 Amended by 25 Geo. V No. 78 ]Where by any law the Governor-General, or the Governor of any State, or of any Australasian Colony, or any Minister of the Crown for the Commonwealth or a State, or any Australasian Colony, is authorized or empowered to do any act, production of the Gazette purporting to contain a copy or notification of any such act shall be evidence of the act having been duly done.

73.   By-laws, rules, and regulations

(1)  Where by any Act of the Commonwealth or of any State, power to make by-laws, rules, regulations, or orders is conferred upon any person or body corporate or unincorporate, any printed paper purporting to be or contain such by-laws, rules, regulations or orders, and to be printed by the Government Printer, or by the authority of the Government of the Commonwealth or of the State, shall be evidence –

(a) that by-laws, rules, regulations, or orders in the words printed in such paper were duly made by such person, or body corporate or unincorporate; and

(b) that such by-laws, rules, regulations, or orders have been approved of, certified to, and confirmed, as required by law, and that all things necessary to give validity to the same have been duly done, and that the same are in force.

(2)  [Section 73 Subsection (2) omitted by No. 30 of 1995, s. 3 and Sched. 1 ][Section 73 Subsection (2) inserted by No. 17 of 1996, s. 36, Applied:23 Mar 1998] On and after the commencement of the Legislation Publication Act 1996 , subsection (1) does not apply to statutory rules, within the meaning of the Rules Publication Act 1953 , on the database, within the meaning of the Legislation Publication Act 1996 .

(3)  [Section 73 Subsection (3) inserted by No. 17 of 1996, s. 36, Applied:23 Mar 1998] On and after the commencement of the Legislation Publication Act 1996 , where by any Act of the State power to make statutory rules, within the meaning of the Rules Publication Act 1953 , is conferred on any person or body corporate or unincorporate, a document or other matter purporting to be a copy of the statutory rules produced under section 6(10) of the Legislation Publication Act 1996 is evidence –

(a) that statutory rules in the form contained in the document or other matter were duly made by that person or body corporate or unincorporate; and

(b) that all things necessary to give validity to the statutory rules have been duly done and that they are in force.

74.   Proof of incorporation of any company

(1)  All courts and persons acting judicially shall admit and receive as evidence of the incorporation of a company incorporated or registered in the United Kingdom or in any State or Australasian Colony, either before or after the commencement of this Act, a certificate of the incorporation or registration thereof which purports to have been signed –

(a) by the Registrar or an assistant or deputy registrar of companies in England, Scotland, or Ireland, or in that State or Colony; or

(b) by a person whose authority to give the same shall be verified by a statutory declaration made before any judge or justice of England, Scotland, or Ireland, or of such State or Colony, of whose signature such courts and persons aforesaid shall take judicial notice –

and the date of incorporation or registration mentioned in such certificate shall be evidence of the date on which the company was incorporated or registered.

(2)  Any copy of, or extract from, any document kept and registered at the office for the registration of companies in the United Kingdom or any part thereof, or in any State or Australasian Colony, if certified under the hand of the Registrar or an assistant or deputy registrar, shall be admissible in evidence in all cases in which the original document is admissible in evidence, and for the same purposes and to the same extent.

75.   Proof of judicial proceedings

Evidence of any judgment, decree, rule, order, petition, or other judicial or legal proceeding of any court in this State, or in any other part of His Majesty's dominions, or in any foreign State, or of any judge or justice of such court, including any affidavit, pleading, or legal document filed or deposited in any such court, may be given by the production of a document purporting to be a copy thereof, and –

(a) proved to be an examined copy thereof;

(b) purporting to be sealed with the seal of the court;

(c) purporting to be certified as a true copy by a registrar or chief officer of the court; or

(d) purporting to be signed by a judge of such court, with a statement in writing attached by him to his signature that such court has no seal, and without proof of his judicial character or of the truth of such statement.

76.   Convictions, acquittals, and other judicial proceedings

[Section 76 Amended by 25 Geo. V No. 78 ][Section 76 Amended by No. 9 of 1965, s. 4 ][Section 76 Amended by No. 64 of 1994, s. 16 ]

(1)  Where it is necessary to prove any of the following facts:

(a) The conviction or acquittal before or by any court or judge or justice of any person charged with any offence;

(b) That any person was sentenced to any punishment or pecuniary fine by any court or judge or justice;

(ba) That any person was ordered by any court, judge, or justice, to enter into a recognizance;

(c) That any person was ordered by any court or judge or justice to pay any sum of money;

(d) The pendency or existence at any time before any court, judge, justice or other official person, or person acting judicially, of any action, trial, proceeding, inquiry, charge, or matter, civil or criminal;

(e) That a restraint order under Part XA of the Justices Act 1959 was made against any person or was varied or revoked under Part XA of that Act by any court or justice;

(f) That an interstate restraint order was registered under Part XA of the Justices Act 1959 by the Chief Clerk of the Court of Petty Sessions and was made against any person; or

(g) That any such registered interstate restraint order, or the period during which any such registered interstate restraint order has effect in its operation in this State, has been varied, or that the registration of any such registered interstate restraint order has been cancelled, by any court or justice under Part XA of the Justices Act 1959 –

evidence of such fact may be given by the production of a certificate under this section.

(2)  Such certificate shall be signed by –

(a) any such judge, or justice, or person;

(b) the clerk of such court;

(c) the officer having ordinarily the custody of the records, or documents, or proceedings, or minutes of such court or judge or justice; or

(d) the deputy of such clerk or officer –

and shall show such fact, or purport to contain the substance, omitting the formal parts, of the record, complaint, conviction, acquittal, sentence, or order, or of the proceeding, inquiry, charge, or matter in question.

(3)  [Section 76 Subsection (3) amended by No. 64 of 1994, s. 16 ]The time and place of such conviction, acquittal, sentence, or order, or of such action, trial, proceeding, inquiry, charge, or matter shall be stated in such certificate, with the title of such court or the name of the judge or justice or person before or by whom it was had, or passed, or made, or pending, or existing or registered.

(4)  Any such certificate –

(a) stating that the person signing the same has ordinarily the custody of the records, or documents, or proceedings, or minutes referred to therein, shall be evidence of that fact;

(b) showing such conviction, acquittal, sentence, or order, shall also be evidence of the particular offence or matter in respect of which the same was had, or passed, or made, if stated in such certificate;

(c) showing the pendency or existence of any such action, trial, proceeding, inquiry, charge, or matter, shall also be evidence of the particular nature and occasion or ground and cause thereof, if stated in such certificate;

(d) purporting to contain the substance, omitting the formal parts, of any record, complaint, conviction, acquittal, sentence, or order, or of any proceeding, inquiry, charge, or matter as aforesaid, shall also be evidence of the matters stated in such certificate;

(e) shall be admissible in evidence without proof of the signature or official character of the person appearing to have signed the same.

(5)  A conviction or an acquittal in any part of His Majesty's dominions may be proved under this section in respect of any person, and a conviction or an acquittal before the passing of this Act shall be admissible in the same manner as if it had taken place after the passing thereof.

(6)  The mode of proving any fact authorized by this section shall be in addition to, and not in exclusion of, any other authorized mode of proving such fact.

(7)  A conviction shall be presumed not to have been appealed against or quashed or set aside until the contrary is shown.

77.   Proof of identity of convicted person

[Section 77 Substituted by 7 Geo. VI No. 40, s. 2 ]

(1)  An affidavit purporting to be made by a finger-print expert who is an officer of the police of any other State or Territory of the Commonwealth and in the form set out in Schedule 5 shall be admissible as evidence in all courts for the purpose of proving the identity of any person alleged to have been convicted in such State or Territory of any offence.

(2)  Any such affidavit shall be proof, unless the contrary is proved, that the person, a copy of whose finger-prints is exhibited to such affidavit –

(a) is the person who, in any document exhibited to such affidavit and purporting to be a certificate of conviction or certified copy of a conviction, is referred to as having been convicted; and

(b) has been convicted of the offences mentioned in such affidavit.

78.   

[Section 78 Repealed by No. 91 of 1974, s. 4 ].  .  .  .  .  .  .  .  

79.   

[Section 79 Repealed by No. 91 of 1974, s. 4 ].  .  .  .  .  .  .  .  

80.   Proof of instrument where attestation needed

[Section 80 Substituted by 7 Geo. VI No. 40, s. 2 ]Subject as hereinafter provided, in any proceedings, whether civil or criminal, an instrument to the validity of which attestation is requisite may, instead of being proved by an attesting witness, be proved in the manner in which it might be proved if no attesting witness were alive: Provided that this provision shall not apply to the proof of wills or other testamentary documents.

81.   Power to impound document

Where any document has been received in evidence the court, or person acting judicially, admitting the same may direct that such document be impounded and kept in the custody of some officer of the court, or other proper person, for such period and subject to such conditions as such court or person thinks fit, or until further order.

Division 7 - Provisions relating to modifications of the hearsay rule

[Part III, Div. 7 Inserted by No. 91 of 1974, s. 5 ]

81A.   Interpretation

[Section 81A Inserted by No. 91 of 1974, s. 5 ]

(1)  In this Division, unless the contrary intention appears –

document includes –

(a) any material or thing on which there is writing or other representation, or on which there are marks, symbols, or perforations having a meaning for persons who are qualified to interpret them; and

(b) a recording;

recording means anything on which any material has been recorded in such a manner that, by the use of any device or instrument, it may be reproduced in a manner suitable for human perception;

representation includes conduct by a person expressed otherwise than by words and intended by him as a substitute for words in expressing the matter represented by him.

(2)  For the purposes of this Division –

(a) a person shall be deemed to be unavailable as a witness in a proceeding if he is –

(i) unable to be present or to testify at the hearing thereof because of death or physical or mental illness existing at the time of the hearing;

(ii) out of the Commonwealth;

(iii) out of this State but elsewhere in the Commonwealth and the probable importance of his evidence is not such as to justify the expense of procuring his attendance; or

(iv) absent from the place of hearing because the party producing his evidence does not know, and has been unable with reasonable diligence to ascertain, his whereabouts; and

(b) a person shall not be deemed to be unavailable as a witness if the judge finds that his inability to be present or to testify at the hearing of any proceeding or his absence from the place of hearing is due to –

(i) procurement or other wrongdoing by the party producing his evidence for the purposes of preventing that person from attending or testifying; or

(ii) the culpable neglect of that party.

81B.   Documentary evidence of facts in issue where maker of representation in document is called as witness

[Section 81B Inserted by No. 91 of 1974, s. 5 ]

(1)  Where direct oral evidence of a fact or of an opinion would be admissible in a proceeding, a representation made by a person in a document tending to establish the fact or expressing the opinion, as the case may be, is, subject to this Division, admissible as evidence of the fact or the opinion in the proceeding, if –

(a) in the case of a representation –

(i) tending to establish a fact, the maker of the representation had personal knowledge of the matters dealt with by the representation; or

(ii) expressing an opinion, the person expressing the opinion is qualified to give evidence of his opinion;

(b) the maker of the representation is called as a witness in the proceeding or, in a proceeding where evidence is given by affidavit, makes an affidavit; and

(c) the court is satisfied, in the case of a representation –

(i) tending to establish a fact, that the representation was made at a time when the facts stated in the document were fresh in the memory of the witness; or

(ii) expressing an opinion, that the facts on which the opinion was based were fresh in the mind of the person expressing the opinion.

(2)  Subsection (1) applies whether a representation is or is not consistent with the evidence given by the maker of the representation, but, where the representation –

(a) is tendered by the party by whom the witness is being called; and

(b) is inconsistent with the evidence given by the witness in the proceeding –

the representation is admissible in evidence only with the leave of the court.

(3)  A representation referred to in this section shall not, without the leave of the court, be tendered in evidence by the party by whom the witness making the representation has been called, except at the conclusion of the examination-in-chief of that witness and before his cross-examination.

(4)  Where in any proceeding a representation in a document is sought to be given in evidence under this section, it may be proved by the production of that document or, whether or not the document is still in existence, by the production of a copy of that document, or of the material part thereof, authenticated in such a manner as the court may approve.

81C.   Documentary evidence of facts in issue where maker of representation in document unavailable as witness

[Section 81C Inserted by No. 91 of 1974, s. 5 ]

(1)  Where direct oral evidence of a fact would be admissible in a proceeding, a representation made by a person in a document tending to establish that fact is, subject to this section, admissible as evidence of the fact in the proceeding, if the maker of the representation –

(a) had personal knowledge of the matters dealt with in the representation; and

(b) is unavailable as a witness.

(2)  Notwithstanding subsection (1) , a representation referred to in that subsection is not admissible in any criminal proceeding if the adverse party –

(a) objects to its being tendered; or

(b) is not represented by counsel or a public officer within the meaning of the Justices Act 1959 .

(3)  Notwithstanding subsection (1) , a representation referred to in that subsection is not admissible in any civil proceeding if the judge is of the opinion that, having regard to all the circumstances, the representation ought not to be admitted without being tested by cross-examination.

(4)  For the purpose of any rule of evidence or of any practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a representation admitted in evidence under this section shall not be treated as corroboration of the evidence given by that person.

81D.   Documentary evidence of opinions

[Section 81D Inserted by No. 91 of 1974, s. 5 ]

(1)  Where direct oral evidence of an opinion would be admissible in a proceeding, an opinion expressed in a document made by a person expressing the opinion or in a document made by another person on the first-mentioned person's direction is, subject to this section, admissible as evidence of the opinion in the proceeding, if –

(a) the person expressing the opinion would, if he had been called as a witness in the proceeding, have been qualified to give evidence of the opinion;

(b) the court is satisfied that the facts on which the opinion was based appear sufficiently from –

(i) the form or contents of the document; or

(ii) the circumstances in which the document expressing the opinion was made –

and that those facts are facts in respect of which evidence is given in the proceeding; and

(c) the person expressing the opinion is unavailable as a witness.

(2)  Notwithstanding subsection (1) , an opinion referred to in that subsection is not admissible in any criminal proceedings if the adverse party –

(a) objects to its being tendered; or

(b) is not represented by counsel or a public officer within the meaning of the Justices Act 1959 .

(3)  Notwithstanding subsection (1) , an opinion referred to in that subsection is not admissible in any civil proceeding if the judge is of the opinion that, having regard to all the circumstances, the opinion ought not to be admitted without being tested by cross-examination.

81E.   Proof of representation by production of copy of document

[Section 81E Inserted by No. 91 of 1974, s. 5 ]For the purposes of this Division, a representation in a document shall be deemed to have been made by a person if the document or the material part of the document –

(a) was written, made, or produced by him with his own hand; or

(b) was signed or initialled by him or otherwise acknowledged by him as his representation.

81F.   Spontaneous contemporaneous representations

[Section 81F Inserted by No. 91 of 1974, s. 5 ]

(1)  Subject to subsection (2) , a representation previously made by a person that is offered to prove the truth of the matter represented is admissible in any proceeding if it purports to narrate, describe, or explain an act, condition, or event perceived by that person and if it was made –

(a) while that person was perceiving; or

(b) spontaneously while that person was under the stress of excitement caused by perceiving –

the act, condition, or event.

(2)  Notwithstanding subsection (1) , unless a person is unavailable as a witness, evidence by him of such a representation as is referred to in that subsection is not admissible in any proceeding unless the person is called to testify as a witness in the proceeding or, in a proceeding where evidence is given by affidavit, makes an affidavit.

(3)  The provisions of this section are in addition to, and not in derogation of, the common law exception to the hearsay rule known as res gestae.

81G.   Notice of intention to adduce hearsay representation in evidence

[Section 81G Inserted by No. 91 of 1974, s. 5 ]

(1)  Where in any proceeding (other than committal proceedings) a party intends to adduce as evidence a representation under section 81C , section 81D , or section 81F , he shall, if he does not intend to call the maker of the representation –

(a) give to every other party to the proceeding notice, in accordance with subsection (2) , of his intention to adduce the evidence without calling the maker of the representation; and

(b) deliver with that notice a copy of the representation, in the case of a representation expressed by words, or particulars thereof, in any other case.

(2)  A notice given by a party for the purposes of subsection (1) –

(a) shall state the party's reason for not proposing to call the maker of the representation to which the notice relates; and

(b) shall be given a reasonable time before the date fixed for the trial.

(3)  A complainant may, in committal proceedings, submit in evidence a representation that is prima facie admissible under section 81B , section 81C , section 81D , or section 81F .

(4)  The justices shall receive a representation to which subsection (3) applies without ruling on its admissibility, but may prohibit publication thereof.

(5)  The provisions of subsection (1) apply to a proceeding after the defendant is committed for trial.

81H.   Court's discretion of excluding evidence

[Section 81H Inserted by No. 91 of 1974, s. 5 ]

(1)  The court may, in its discretion, exclude any evidence tendered before it pursuant to section 81B , section 81C , section 81D , or section 81F , if the court is of the opinion that the probative value of the evidence is outweighed by the consideration that its admission or the determination of its admissibility –

(a) may necessitate undue consumption of time; or

(b) may create undue prejudice, confuse the issues, or mislead the jury, in the case of a proceeding with a jury.

(2)  The provisions of subsection (1) are supplemental to, and not in derogation of, the common law discretion to exclude evidence at a criminal trial or the hearing of a summary offence.

81J.   Impeaching credit of persons not called as witnesses

[Section 81J Inserted by No. 91 of 1974, s. 5 ]

(1)  Subject to subsection (2) , where in any proceeding a representation made by a person who is not called as a witness is given in evidence by virtue of section 81C , section 81D , or section 81F –

(a) any evidence that, if that person had been so called, would be admissible for the purpose of supporting or detracting from his credibility as a witness is admissible for that purpose in that proceeding; and

(b) evidence tending to prove that, whether before or after he made that representation, that person made (whether orally or in a document or otherwise) another representation inconsistent or partly inconsistent therewith is admissible for the purpose of showing that that person has contradicted or partly contradicted himself.

(2)  Nothing in this section enables evidence to be given of any matter of which, if the person in question had been called as a witness and had denied that matter in cross-examination, evidence could not have been adduced by the cross-examining party.

81K.   Dying declarations

[Section 81K Inserted by No. 91 of 1974, s. 5 ]

(1)  A declaration by a person since deceased is admissible in any criminal proceeding in which a dying declaration is now admissible, if the declarant was at the time of making the declaration aware of his danger, and on the whole believed that he would shortly die, although he entertained some degree of hope of recovery.

(2)  No declaration to which subsection (1) applies shall be excluded because of its having been, or purporting to be, on oath, if it is otherwise admissible as a dying declaration.

81L.   Admissibility of certain previous inconsistent and contradictory statements and certain previous consistent statements

[Section 81L Inserted by No. 91 of 1974, s. 5 ]

(1)  Nothing in this Division affects the admissibility of a representation not made admissible by this Division but which is admissible as –

(a) a previous inconsistent or contradictory statement under section 98 or section 99 ; or

(b) a previous consistent statement to rebut a suggestion of recent invention.

(2)  Where in any proceeding –

(a) a previous inconsistent or contradictory statement made by a person who is called as a witness in that proceeding is proved by virtue of section 98 or section 99 ; or

(b) a previous statement made by such a person is proved for the purpose of rebutting a suggestion that his evidence has been fabricated –

that statement is admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible.

81M.   Court may act on medical certificate

[Section 81M Inserted by No. 91 of 1974, s. 5 ]The court may, in deciding, for the purposes of this Division, whether a person is or is not fit to attend as a witness, accept an opinion in a document purporting to be a certificate by a legally-qualified medical practitioner.

81N.   Powers of judge in relation to certain representations where makers not called as witnesses, &c.

[Section 81N Inserted by No. 91 of 1974, s. 5 ]Where the maker of a representation referred to in section 81C or section 81D , although not proved to be unavailable –

(a) is not called as a witness in a civil proceeding; or

(b) in a civil proceeding where evidence is given by affidavit, is not produced for cross-examination pursuant to notice –

a judge may, if, having regard to all the circumstances of the case, he is satisfied –

(c) that undue delay or expense would otherwise be caused; or

(d) that it would not for any reason be inexpedient in the interests of justice to do so –

make an order that the representation be admitted in evidence.

81P.   Representations to be read out in criminal proceedings in certain cases

[Section 81P Inserted by No. 91 of 1974, s. 5 ]In a criminal proceeding a representation in a document admitted under section 81B , section 81C , or section 81D shall be read out at the trial, but, unless the judge is satisfied that the contents of the representation are so complex that the representation could not reasonably be comprehended by members of the jury without reading it for themselves, it shall not be made available to them as an exhibit.

81Q.   Documents relating to transportation of persons or goods

[Section 81Q Inserted by No. 91 of 1974, s. 5 ]

(1)  An apparently genuine document purporting to be a document of a prescribed nature and to relate to the transportation or shipment of any person or goods, from one place to another –

(a) is admissible in evidence on production without further proof; and

(b) is evidence of any fact stated, or referred to, in the document, or to be inferred from the document, and, where the document relates to the shipment of goods, shall be evidence that the ownership of goods referred to in the document is in the consignee named in the document or his assignee.

(2)  Evidence of the description of any package or property, or of any inscription or mark upon any package or property, is admissible (without production of the original inscription or mark) for the purpose of raising an inference as to the identity of the package or property with that referred to in a document admissible in evidence under this section.

(3)  For the purpose of determining the evidentiary weight (if any) of the document admitted in evidence under this section, consideration shall be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.

(4)  In this section –

document of a prescribed nature means –

(a) a bill of lading, manifest, shipping receipt, consignment note, way-bill, delivery sheet, register or order, invoice, ticket, or passenger list or register, and any document of a like nature; or

(b) any reproduction of any such document by photographic, photostatic, lithographic, or other like process;

shipment means carriage by any means by air, land, or water.

PART IV - [Part IV Heading amended by No. 37 of 1995, s. 4 ]Witnesses Generally

Division 1 - [Part IV, Div. 1 Heading amended by No. 36 of 1958, s. 4 and Sched. 3 ]Competency and compellability of witnesses

82.   Witnesses interested or convicted of offence

No person shall be excluded from giving evidence in any proceeding on the ground –

(a) that he has or may have an interest in the matter in question, or in the result of the proceeding; or

(b) that he has previously been convicted of any offence.

83.   Evidence of deaf and dumb witness

[Section 83 Amended by No. 36 of 1958, s. 4 and Sched. 3 ]

(1)  A witness unable to speak or hear is not incompetent, but may give his evidence by writing or by signs, or in any other manner in which he can make it intelligible; but such writing must be written and such signs made in open court.

(2)  Evidence so given is deemed to be oral evidence.

84.   Evidence of party, or of wife or husband of party, in civil cases

[Section 84 Amended by No. 36 of 1958, s. 4 and Sched. 3 ]

(1)  In any civil proceeding the parties thereto, and the persons on whose behalf such proceeding is brought or defended, and the husbands and wives of such parties or persons respectively, shall, subject to the provisions of this Act, be competent and compellable to give evidence on behalf of either or any of the parties to such proceeding.

(2)  In this section, the expression civil proceeding includes any complaint made to justices upon which they have authority by law to make an order on any person for the payment of money, or for doing or refraining from doing any other act.

85.   Evidence in criminal proceedings

[Section 85 Substituted by No. 52 of 1981, s. 6 ]

(1)  This section applies to all legal proceedings in which a person is charged with having committed an offence.

(2)  For the purposes of this section –

criminal proceedings means legal proceedings to which this section applies;

defendant means a person charged as referred to in subsection (1) .

(3)  [Section 85 Subsection (3) substituted by No. 34 of 1986, s. 4 ]In this section, a reference to the spouse of the defendant is a reference to a person who is the husband or wife of the defendant by virtue of a lawfully celebrated marriage ceremony –

(a) at the time the defendant is alleged to have committed the offence with which he is charged and at the time when he is tried for that offence; or

(b) at the time when the defendant is tried for the offence with which he is charged but not at the time when the defendant is alleged to have committed the offence.

(3A)  [Section 85 Subsection (3A) inserted by No. 34 of 1986, s. 4 ]A person who was the husband or wife of the defendant by virtue of a lawfully celebrated marriage ceremony at the time when the defendant is alleged to have committed the offence with which he is charged but not at the time when the defendant is tried for that offence may be compelled to give evidence in any criminal proceedings against the defendant and against any person jointly charged with the defendant.

(4)  In criminal proceedings, the defendant has a right to give evidence on his own behalf and on behalf of any person who is jointly charged with him if that person requests him to do so, but in no circumstance may the defendant be compelled to give evidence in the proceedings.

(5)  Subsection (4) has effect notwithstanding that the defendant is the spouse of a person who is jointly charged with the defendant.

(6)  In criminal proceedings, the spouse of the defendant may –

(a) at the request of the prosecutor, give evidence for the prosecution;

(b) at the request of the defendant, give evidence for the defendant; and

(c) at the request of any person who is jointly charged with the defendant, give evidence for that person –

but, except as provided in subsection (7) and in section 86 , that spouse may not be compelled to give evidence in the proceedings, whether for the prosecution, the defendant, or any person jointly charged with the defendant.

(7)  [Section 85 Subsection (7) amended by No. 55 of 1987, s. 3 ][Section 85 Subsection (7) amended by No. 57 of 1993, s. 4 ][Section 85 Subsection (7) amended by No. 72 of 1994, s. 8 ]Subject to subsections (4) and (5) , in criminal proceedings, the spouse of the defendant may be compelled to give evidence against the defendant and against any person jointly charged with the defendant where –

(a) the defendant is charged with having committed incest; or

(b) the defendant is charged with having committed a crime under section 124 , 125 , 125A , 126 , 127 , 127A , 128 or 129 of the Criminal Code or under any provision of Chapter XIX or XX of that Code against a person who, at the time of the alleged crime, had not attained the age of 16 years; or

(ba) the defendant is charged with having committed an offence under the Police Offences Act 1935 involving an assault on, or the threat of violence to, a person who, at the time of the alleged offence, had not attained the age of 16 years; or

(c) the defendant is charged with having committed assault against, or any other offence involving violence or the threat of violence to, the spouse; or

(d) the proceedings were instituted as the result of a complaint by that spouse against the defendant for an offence alleged to have been committed by the defendant against or in relation to the property of that spouse.

(8)  The prosecutor shall not, in any criminal proceedings, comment on the failure of the defendant to give evidence in the proceedings, but he may comment on the failure of any other person, including the spouse of the defendant, to give evidence in the proceedings.

(9)  Where in criminal proceedings the spouse of the defendant proposes to give in the proceedings evidence which the spouse is competent to give but may not be compelled to give, it is the duty of the judge or other person presiding over the proceedings to explain to the spouse, in the absence of the jury (if any), that the spouse is not obliged to give that evidence if the spouse does not wish to do so.

(10)  Where in criminal proceedings the defendant gives evidence, he may be asked, and be required to answer, any question put to him in cross-examination even though the answer would tend to incriminate him as to the offence with which he is charged, but he shall not be asked, and, if asked, shall not be required to answer, any question tending to establish that he has committed or been charged with any offence other than that with which he is then charged, or that he is of bad character, unless –

(a) proof that he has committed or has been convicted of that other offence would, apart from this section, be admissible in evidence to establish that he is guilty of the offence with which he is charged;

(b) he has, personally or by his counsel, asked questions of the witnesses for the prosecution in order to establish his own good character or has given evidence of his own good character;

(c) the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution; or

(d) he has given evidence against any other person charged with the same offence as that with which he is charged and tried jointly with him.

(11)  Subject to subsection (12) , where in criminal proceedings –

(a) the defendant has personally or by his counsel asked questions of the kind referred to in subsection (10) (b) ;

(b) the nature or conduct of the defence is such as is referred to in subsection (10) (c) ; or

(c) the defendant has given evidence referred to in subsection (10) (d) –

the prosecutor, and, where the defendant has given evidence against any other person jointly charged with him, that other person, may adduce evidence in order to establish that the defendant is of bad character or has been convicted or charged with any offence other than that with which he is charged, notwithstanding that the case of the prosecutor or of the other person charged may already be closed.

(12)  Where a person, including the defendant, is called to give evidence in criminal proceedings, he shall, unless the judge or other person presiding over the proceedings otherwise orders, give that evidence from the witness-box or other place provided for the purpose in the court where the proceedings are held.

(13)  [Section 85 Subsection (13) substituted by No. 89 of 1993, s. 4 ]In criminal proceedings, a defendant is not entitled to give evidence by means of an unsworn statement.

85A.   Evidence by spouse in relation to restraint orders

[Section 85A Inserted by No. 57 of 1993, s. 5 ]

(1)  In this section, prescribed application means an application made by a police officer under Part XA of the Justices Act 1959 in respect of –

(a) an act or alleged act of violence; or

(b) a threat or alleged threat of violence –

on the part of the respondent to the application against any person.

(2)  The spouse of a person who is the respondent to a prescribed application may, in any proceedings in respect of the application, be compelled to give evidence against that person.

86.   Evidence by spouse of defendant in proceedings by indictment to enforce civil rights

[Section 86 Amended by 25 Geo. V No. 78 ]On the trial of any indictment or other proceeding –

(a) for the non-repair of any public highway or bridge;

(b) for a nuisance to any public highway, river, or bridge; or

(c) instituted for the purpose of trying or enforcing a civil right only –

every defendant to such indictment or proceeding, and the wife or husband of any such defendant, shall be admissible witnesses and compellable to give evidence.

87.   Power to compel answer to incriminating question

[Section 87 Amended by 25 Geo. V No. 78 ]

(1)  Whenever in any proceeding any person called as a witness, or required to answer any interrogatory, declines to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him, the judge may, if it appears to him expedient for the ends of justice that such person should be compelled to answer such question or interrogatory, tell such person that, if he answers such question or interrogatory and other questions or interrogatories that may be put to him, in a satisfactory manner, he will grant him the certificate hereinafter mentioned.

(2)  Thereupon such person shall no longer be entitled to refuse to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him; and thereafter if such person shall have given his evidence to the satisfaction of the judge, the judge shall give such person a certificate to the effect that he was called as a witness or interrogated in the said proceeding, and that his evidence was required for the ends of justice, and was given to his satisfaction.

(3)  [Section 87 Subsection (3) amended by No. 108 of 1974, s. 38 and Sched. 1 ]The power conferred by this section shall not be exercisable by any justice other than a magistrate.

88.   Witnesses in revenue cases compellable to give evidence

[Section 88 Amended by 25 Geo. V No. 78 ]

(1)  In any proceeding for the breach of any Act relating to –

(a) stamp duties;

(b) the public revenues; or

(c) the sale of intoxicating liquors –

or in any proceeding brought by or on behalf of or against the Crown under or in pursuance of the provisions of any such Act, the judge may require any person, except the accused or his wife in proceedings under paragraph (c) , to be examined as a witness.

(2)  A person so required to be examined as aforesaid shall not be excused from being so examined, or from answering any question put to him touching any such breach as aforesaid on the ground that his evidence will tend to incriminate him.

(3)  If any such person refuses to be examined, or to answer any such question as aforesaid, he shall be deemed to be a witness appearing under a subpoena and refusing without lawful cause or excuse to be sworn or to give evidence.

(4)  Every person required to be examined under this section touching any such breach as aforesaid, who on such examination makes to the best of his knowledge true and faithful discovery of all matters whereon he is so examined touching such breach, and thereby gives evidence tending to incriminate himself, shall, on application, receive from the judge before whom he is examined a certificate in writing under his hand that he has made such true and faithful discovery.

(5)  [Section 88 Subsection (5) amended by No. 108 of 1974, s. 38 and Sched. 1 ]This section shall not apply to proceedings before any justice other than a magistrate.

89.   Certificate may be pleaded in bar to prosecution

[Section 89 Amended by 25 Geo. V No. 78 ][Section 89 Amended by No. 36 of 1958, s. 4 and Sched. 3 ]If any person called as a witness or interrogated under sections 87 or 88 receives the certificate therein mentioned (but not otherwise), he shall be freed from all criminal prosecutions and penal actions, and from all penalties, forfeitures, and punishments to which he was liable for anything done before that time in respect of the matters touching which he is so examined; but nothing contained in this section shall make such certificate pleadable in bar of any indictment against such person for perjury committed in such proceeding as aforesaid.

90.   Persons present may be examined without subpoena

Any person present at any legal proceeding wherein he might have been compellable to give evidence and produce documents by virtue of a subpoena or other summons or order duly issued and served for that purpose, shall be compellable to give evidence, and to produce documents then in his possession and power, in the same manner, and in case of refusal shall be subject to the same penalties and liabilities, as if he had been duly subpoenaed or summoned for that purpose.

91.   Power of judge in the course of legal proceeding before him to direct subpoena to issue

[Section 91 Amended by No. 36 of 1958, s. 4 and Sched. 3 ]

(1)  A judge of the Supreme Court may at any time in the course of any legal proceeding which is being conducted before him direct the Registrar of the Court, or the Sheriff, to issue a subpoena or other order in writing, commanding any person whom the judge shall name to attend and give evidence as a witness in such proceeding.

(2)  The expenses of such person in attending to give evidence in such proceeding shall be paid by the Sheriff out of the moneys provided by Parliament for witnesses summoned to give evidence on behalf of the Crown; but the judge may direct that the expenses of any witness called by him in any civil proceeding shall be costs in the cause.

92.   Witnesses failing to attend trial

(1)  Where any person duly bound by recognizance or served with a subpoena, summons, or order to attend in any court as a witness at the trial of any case, civil or criminal, fails to appear when called in open court, either at such trial or upon the day appointed for such trial, the court may –

(a) upon proof of such recognizance, or of his having been duly served with such subpoena, summons, or order, call upon him to show cause why execution upon such recognizance or an attachment for disobedience to such subpoena, summons, or order should not be issued against him; or

(b) upon proof of such recognizance of service, and also that his non-appearance is without just cause or reasonable excuse, and upon oath that he will probably be able to give material evidence, issue a warrant to bring him before the court to give evidence at such trial.

(2)  Such proof may be oral before the court or by affidavit.

93.   Procedure

[Section 93 Amended by 25 Geo. V No. 78 ]

(1)  Every rule or order to show cause as aforesaid may –

(a) be made returnable before the court itself at the then sittings or at some future sittings; or

(b) on the trial of a case pending in the Supreme Court, be made returnable in the Supreme Court.

(2)  On the return of any such rule or order, the court may deal with the case as the Supreme Court might and would have done upon a rule to the like effect issued out of that court.

Division 2 - [Part IV, Div. 2 Heading inserted by No. 36 of 1958, s. 4 and Sched. 3 ]Privilege of witnesses

94.   Communications during marriage

[Section 94 Amended by 25 Geo. V No. 78 ]

(1)  A husband shall not be compellable in any proceeding to disclose any communication made to him by his wife during the marriage, and a wife shall not be compellable in any proceeding to disclose any communication made to her by her husband during the marriage.

(2)  [Section 94 Subsection (2) omitted by No. 100 of 1993, s. 3 ].  .  .  .  .  .  .  .  

95.   

[Section 95 Repealed by No. 100 of 1993, s. 3 ].  .  .  .  .  .  .  .  

95A.   Evidence of non-access

[Section 95A Inserted by 7 Geo. VI No. 40, s. 2 ]

(1)  In any proceeding either of two spouses may give evidence proving or tending to prove that such spouses did not have sexual relations with each other at any particular time notwithstanding that such evidence would tend to show that any child born to the wife during marriage was illegitimate.

(2)  Nothing in this section shall affect the operation of section 94 or section 95 .

96.   Communications to clergymen and medical men

(1)  No clergyman of any church or religious denomination shall divulge in any proceeding any confession made to him in his professional character, except with the consent of the person who made such confession.

(2)  [Section 96 Subsection (2) amended by No. 25 of 1988, s. 4 ]No physician or surgeon shall, without the consent of his patient, divulge in any civil proceeding any communication made to him in his professional character by such patient, and necessary to enable him to prescribe or act for such patient unless the sanity of the patient be the matter in dispute.

(2A)  [Section 96 Subsection (2A) inserted by No. 25 of 1988, s. 4 ]No person who has possession, custody, or control of any communication referred to in subsection (2) or of any record of such a communication made to a physician or surgeon by a patient shall, without the consent of the patient, divulge that communication or record in any civil proceeding unless the sanity of the patient is the matter in dispute.

(3)  Nothing in this section shall protect any communication made for any criminal purpose, or prejudice the right to give in evidence any statement or representation at any time made to or by a physician or surgeon in or about the effecting by any person of an insurance on the life of himself or any other person.

Division 3 - [Part IV, Div. 3 Heading inserted by No. 36 of 1958, s. 4 and Sched. 3 ]Impeaching credit of witnesses

97.   How far a party may discredit his own witness

A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but may contradict him by other evidence relevant to the issue.

98.   Cross-examination as to previous statement in writing or deposition

[Section 98 Amended by No. 36 of 1958, s. 4 and Sched. 3 ]

(1)  Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it.

(2)  The same course may be taken with a witness upon his examination in chief, if the judge is of opinion that the witness is hostile to the party by whom he was called and permits the question.

99.   Proof of contradictory statements of witness

[Section 99 Amended by 25 Geo. V No. 78 ]

(1)  A witness under cross-examination, or a witness whom the judge, under the provisions of section 98 , has permitted to be examined by the party who called him as to previous statements inconsistent with his present testimony, may be questioned as to –

(a) a previous statement made or supposed to have been made by him in writing or reduced into writing; or

(b) evidence given or supposed to have been given by him before any justice –

without such writing or the deposition of such witness being shown to him.

(2)  If it is intended to contradict such witness by such writing or deposition, his attention must, before such contradictory proof can be given, be called to those parts of the writing or deposition which are to be used for the purpose of so contradicting him.

(3)  The judge may, at any time during the trial, require the writing or deposition to be produced for his inspection, and may thereupon make use of it for the purposes of the trial as he thinks fit.

100.   Proof of previous conviction of witness

A witness may be questioned as to whether he has been convicted of any crime, and, upon being so questioned, if he either denies or does not admit the fact, or refuses to answer, the cross-examining party may prove such conviction.

Division 4 - [Part IV, Div. 4 Heading inserted by No. 36 of 1958, s. 4 and Sched. 3 ]Protection of witnesses

101.   Questions tending to criminate

Except as provided in this Act nothing in this Act shall render any person compellable to answer any question tending to criminate himself.

102.   Cross-examination as to credit

(1)  If any question put to a witness upon cross-examination relates to a matter not relevant to the proceeding, except in so far as it affects the credit of the witness by injuring his character, it shall be the duty of the court to decide whether or not the witness shall be compelled to answer it, and the court may, if it thinks fit, inform the witness that he is not obliged to answer it.

(2)  In exercising this discretion the court shall have regard to the following considerations:

(a) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;

(b) Such questions are improper if the imputation they convey relates to matters so remote in time, or of such a character that the truth of the imputation would not affect, or would affect in a slight degree only, the opinion of the court as to the credibility of the witness on the matter to which he testifies;

(c) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence.

(3)  Nothing herein shall be deemed to make any witness compellable to give evidence upon any matter he is now by law privileged from disclosing.

102A.   Evidence relating to sexual experience, &c.

[Section 102A Substituted by No. 55 of 1987, s. 4 ]

(1)  [Section 102A Subsection (1) amended by No. 5 of 1993, s. 4 ]In any proceeding before a magistrate or a court relating to a crime charged under Chapter XIV or Chapter XX of the Criminal Code or an offence under section 35 (3) of the Police Offences Act 1935 –

(a) any evidence which discloses or implies the sexual reputation of the person against whom the crime or offence is alleged to have been committed shall not be adduced nor elicited; and

(b) any evidence which discloses or implies the sexual experience of that person, other than sexual experience which forms part of the events or circumstances out of which the charge arises, shall not be adduced nor elicited unless leave of the magistrate or judge is first obtained on application made in the absence of any jury.

(2)  [Section 102A Subsection (2) amended by No. 5 of 1993, s. 4 ]A magistrate or judge in any proceeding relating to a crime or an offence referred to in subsection (1) shall not grant leave under paragraph (b) of that subsection unless satisfied that –

(a) the evidence which is sought to be adduced or elicited has direct and substantial relevance to a fact or matter in issue; and

(b) the probative value of such evidence outweighs any distress, humiliation, or embarrassment which the person against whom the crime or offence is alleged to have been committed might suffer as a result of the admission of such evidence.

(3)  In this section, a reference to the sexual experience of a person includes a reference to –

(a) any sexual activity or sexual behaviour of that person;

(b) the disposition of that person in sexual matters; and

(c) the lack of sexual experience of that person.

103.   Indecent or scandalous questions

The court may forbid any question it regards as –

(a) indecent or scandalous, although such question may have some bearing on the case before the court, unless the question relates to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed; or

(b) intended to insult or annoy, or needlessly offensive in form, notwithstanding that such question may be proper in itself.

103A.   Court may forbid publication of certain evidence, &c.

[Section 103A Inserted by No. 108 of 1974, s. 38 and Sched. 1 ]The court may forbid the publication of –

(a) any evidence given in court;

(b) any argument addressed to the court; or

(c) particulars of that evidence or argument –

in a case before the court, if it is of the opinion that the printing or publication of the evidence, argument, or particulars will prejudice, or be likely to prejudice, the fair trial of the case.

103AB.   Prohibition of publication of certain identifying particulars in certain cases

[Section 103AB Substituted by No. 55 of 1987, s. 5 ][Section 103AB Amended by No. 5 of 1993, s. 5 ][Section 103AB Amended by No. 72 of 1994, s. 8 ]

(1)  A person shall not, in relation to any proceedings in any court in respect of any offence, publish or cause to be published in any newspaper, journal, or other periodical, or document or in any broadcast by means of wireless telegraphy or television –

(a) the name, address, or any other reference or allusion likely to lead to the identification of –

(i) any person in respect of whom a crime is alleged to have been committed under section 124 , 125 , 125A , 126 , 127 , 127A , 128 , 129 , 185 or 186 of the Criminal Code ; or

(ii) any person in respect of whom an offence is alleged to have been committed under section 35 (3) of the Police Offences Act 1935 ; or

(iii) any witness or intended witness in any such proceedings; or

(b) any picture purporting to be a picture of any such person –

unless the court makes an order that any such name, address, reference, allusion, or picture may be so published subject to such conditions that the court may specify in that order.

(2)  A person shall not, in relation to any proceedings in any court in respect of any offence, publish or cause to be published in any newspaper, journal, or other periodical or document, or in any broadcast by means of wireless telegraphy or television –

(a) the name, address, or any other reference or allusion likely to lead to the identification of –

(i) any person in respect of whom a crime is alleged to have been committed under section 133 of the Criminal Code ; or

(ii) the person who is alleged to have committed that crime; or

(iii) any witness or intended witness in such proceedings; or

(b) any picture purporting to be a picture of any such person –

unless the court makes an order that any such name, address, reference, allusion, or picture may be so published subject to such conditions that the court may specify in that order.

(3)  A court shall not make an order under subsection (1) or (2) unless satisfied that it is in the public interest to make that order.

(4)  A person who publishes or causes to be published anything in contravention of this section commits a contempt of court and is liable to punishment for that contempt as if it had been committed in the face of the court against which the contempt is committed and on similar proceedings as in that last-mentioned case.

104.   Prohibited questions and evidence, &c., not to be published

[Section 104 Substituted by No. 108 of 1974, s. 38 and Sched. 1 ][Section 104 Subsection (1) amended by No. 55 of 1987, s. 6 ]

(1)  [Section 104 Subsection (1) amended by No. 106 of 1976, s. 4 ]No person shall print or publish –

(a) any question that the court –

(i) has, under the provisions of section 102A or 103 , forbidden or disallowed; or

(ii) has informed the witness that he is not obliged to answer –

and has ordered shall not be published; or

(b) any evidence, argument, or particulars of any evidence or argument that the court has, under the provisions of section 103A , forbidden to be published.

(c) .  .  .  .  .  .  .  .  

(2)  A person who prints or publishes anything in breach of this section commits a contempt of court, and is liable to punishment for that contempt as if it had been committed in the face of the court against which the contempt is committed and on similar proceedings as in that last-mentioned case.

Division 5 - [Part IV, Div. 5 Heading inserted by No. 36 of 1958, s. 4 and Sched. 3 ]General rules of evidence

105.   Evidence of authority

[Section 105 Amended by 25 Geo. V No. 78 ]

(1)  The averment or recital in an indictment that the prosecution is instituted by or by the direction of the Attorney-General or Solicitor-General or of any other officer duly appointed for such purpose, or at the request of the Government of any State, shall be sufficient evidence of the fact until the contrary is shown.

(2)  Any indictment which purports to be signed by the Attorney-General or Solicitor-General or any other officer duly appointed to prosecute on behalf of His Majesty in respect of the offence alleged in such indictment, shall be deemed to be duly signed until the contrary is shown.

(3)  Any person who knowingly and wilfully signs and files any such indictment which he is not authorized to sign shall be guilty of and liable to punishment as for a contempt of the court in which the indictment is filed committed in face of the court.

106.   Intention to defraud

On the trial of a person charged with any offence of which an intent to injure or deceive or defraud, or an intent to enable another person to deceive or defraud, is an element, it shall not be necessary to prove an intent to injure or deceive or defraud any particular person, or an intent to enable any particular person to deceive or defraud any particular person.

107.   Proof by attesting witness

It shall not be necessary to prove, by the attesting witness, any instrument to the validity of which attestation is not requisite, and such instrument may be proved as if there had been no attesting witness thereto.

108.   Comparison of disputed handwriting

Comparison of a disputed handwriting with any writing proved to the satisfaction of the judge or person acting judicially to be genuine may be made by witnesses, and such writings and the testimony of witnesses respecting the same may be submitted to the court or such person and the jury or assessors, if any, as evidence of the genuineness or otherwise of the writing in dispute.

109.   Admissions in criminal cases

An accused person, either personally or by his counsel or solicitor, in his presence, may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence.

110.   Proof of exemption, &c., to lie upon defendant

[Section 110 Amended by 25 Geo. V No. 78 ]It shall not be necessary –

(a) in any indictment; or

(b) in any complaint made before a justice –

to specify or negative, nor for the prosecutor or complainant to prove, any exemption, exception, proviso, condition, excuse, or qualification, whether it does or does not accompany in the same section the description of the offence in the Act, by-law, regulation, order, or other document creating the offence; but where any such exemption, exception, proviso, condition, excuse, or qualification shall be relied upon by the defendant, the proof thereof shall lie upon him.

111.   

[Section 111 Repealed by 15 Geo. V No. 35, s. 2 ].  .  .  .  .  .  .  .  

112.   

[Section 112 Repealed by No. 91 of 1974, s. 6 ].  .  .  .  .  .  .  .  

113.   Certain errors not to avoid conviction

[Section 113 Amended by 25 Geo. V No. 78 ]A conviction, whether upon indictment or summary, cannot be set aside on the ground of the improper admission of evidence –

(a) if it appears to the court that the evidence was not material; or

(b) upon the ground of the improper admission of evidence adduced for the defence.

113A.   Admission of exhibits, &c., without formal proof

[Section 113A Inserted by No. 74 of 1975, s. 13 ]In any criminal proceeding the judge may –

(a) if he sees fit; and

(b) if the parties to the proceeding consent thereto –

receive as evidence without formal proof thereof –

(c) exhibits; and

(d) affidavits and statutory declarations.

Division 6 - [Part IV, Div. 6 Heading inserted by No. 36 of 1958, s. 4 and Sched. 3 ]Rules of evidence in particular cases

114.   Evidence on certain charges relating to money

[Section 114 Amended by 25 Geo. V No. 78 ]

(1)  On the trial of a person charged with the stealing or embezzlement of money, an entry in any book of account shown to be kept by the accused person, or kept in, under, or subject to his charge or supervision, purporting to be an entry of the receipt of any money, shall be evidence that the money so purporting to have been received was so received by him.

(2)  On the trial of a person charged with any such offence, it shall not be necessary to prove the stealing or embezzlement by the accused person of any specific sum of money if, on examination of the books of account or entries kept or made by him, or kept or made in, under, or subject to his charge or supervision, or by any other evidence, there is proof of a general deficiency, and if the jury are satisfied that the accused person was guilty of stealing or embezzlement of the deficient money or any part of it.

115.   Evidence on charges relating to seals and stamps

On the trial of a person charged with any offence relating to any seal or stamp used for the purposes of the public revenue, or of the post-office in any part of His Majesty's dominions, or in any foreign State, a despatch from one of His Majesty's principal Secretaries of State, transmitting to the Governor any stamp, mark, or impression and stating it to be a genuine stamp, mark, or impression of a die, plate, or other instrument provided, made, or used by or under the direction of the proper authority of the country in question, for the purpose of expressing or denoting any stamp duty or postal charge, shall be admissible as evidence of the facts stated in the despatch; and the stamp, mark, or impression so transmitted may be used by the court and jury and by witnesses for the purposes of comparison.

116.   Evidence in cases of receiving stolen property

Where proceedings are taken against any person for having received anything which has been obtained by means of any act constituting a crime, knowing the same to have been so obtained, evidence may be given at any stage of the proceedings that there was found in the possession of such person any other thing obtained by such means within the preceding period of 12 months, and such evidence may be taken into consideration for the purpose of proving that such person knew the property which forms the subject of the proceedings taken against him to have been obtained by means of an act constituting a crime.

116A.   Pilfering of goods from vessel, wharf, &c.

[Section 116A Inserted by 11 Geo. V No. 34, s. 2 ][Section 116A Amended by 25 Geo. V No. 78 ]On the prosecution of any person for stealing any property in or from any vessel, barge, or boat, or from any dock, wharf, or quay, or from any store or shed used in connection with or adjoining such dock, wharf, or quay, or for receiving any such property, knowing it to have been stolen, evidence may be given of any writing, printing, or marks upon the said property, or upon the packages containing the same without producing or giving notice to produce the original writing, printing, or marks; and on any such prosecution a document purporting to be the bill of lading, manifest, shipping receipt, delivery order, specification, schedule, packing list, or invoice relating to the said property shall be admissible in evidence on production and without further proof, and shall be prima facie evidence of the particulars and the facts contained therein, and that the ownership of the said property is in the consignee referred to therein or his assignee.

117.   

[Section 117 Repealed by No. 100 of 1993, s. 3 ].  .  .  .  .  .  .  .  

118.   Actions for seduction

(1)  In an action to recover damages for seduction brought by a parent of the woman seduced, or by a person standing to her in the place of a parent, it shall not be necessary to allege or prove that she was in the service of the plaintiff, or that he sustained any loss of service by reason of the seduction.

(2)  The plaintiff in such action shall not recover a verdict unless the evidence of the woman seduced is corroborated by some other material evidence of such seduction.

119.   Admission of paternity in cases of bastardy

If upon the hearing of any complaint relating to an illegitimate infant the court is satisfied that the paternity of such infant is established by the admission of the person alleged to be the father of such infant, the court may, if it thinks fit, dispense with any evidence on the part of the mother of the infant, and may accept the said admission as conclusive evidence of the paternity.

120.   

[Section 120 Repealed by No. 100 of 1993, s. 3 ].  .  .  .  .  .  .  .  

Division 7 - [Part IV, Div. 7 Heading inserted by No. 36 of 1958, s. 4 and Sched. 3 ]Evidence of witnesses in prison

121.   Prisoner required to give evidence may be brought up on order

[Section 121 Amended by 25 Geo. V No. 78 ][Section 121 Amended by No. 108 of 1974, s. 38 and Sched. 1 ]

(1)  [Section 121 Subsection (1) amended by No. 5 of 1985, s. 3 and Sched. 1 ]It shall be lawful for –

(a) any judge of the Supreme Court;

(b) any commissioner of a court of requests;

(c) any warden of mines; or

(d) any magistrate –

when and as he sees fit, by any verbal order to the Director of Corrective Services, or by an order in writing addressed to any gaoler, to cause any person under imprisonment for any cause to be brought up in order to his being examined as a witness in any case or matter, civil or criminal, depending before such judge, commissioner, warden, or magistrate.

(2)  [Section 121 Subsection (2) amended by No. 5 of 1985, s. 3 and Sched. 1 ]After the evidence of such witness has been given, the Director of Corrective Services shall cause the prisoner to be removed and again imprisoned, the non-issue of a writ of habeas corpus in any such case notwithstanding.

(3)  In every civil proceeding the judge or other person making the order under subsection (1) shall, and in every other proceeding he may, before making such order, require the applicant to deposit a sum sufficient to pay the expense of bringing up the prisoner, maintaining him while out of prison, and returning him thereto, including the expense of his custody from the time he leaves until the time he returns to prison.

122.   Provision for prisoner being present at taking of deposition of person dangerously ill

[Section 122 Amended by 25 Geo. V No. 78 ][Section 122 Amended by No. 46 of 1991, s. 4 and Sched. 2 ]Whenever a prisoner in actual custody has received notice of an intention to take the deposition of a person dangerously ill and unable to travel, the Director of Corrective Services, at the request of a judge of the Supreme Court or of a justice, may make an order under his hand directing any gaoler to convey the prisoner to the place mentioned in the said notice for the purpose of being present at the taking of the deposition; and the gaoler shall convey the prisoner accordingly and afterwards return him to prison.

PART IVA - Child and Special Witnesses

[Part IVA Inserted by No. 37 of 1995, s. 5 ]

122A.   Interpretation of Part IVA

[Section 122A Inserted by No. 37 of 1995, s. 5 ]In this Part –

affected child means –

(a) a child in respect of whom an application under section 10 or 11 of the Child Protection Act 1974 is made; or

(b) a child upon or in respect of whom any of the following crimes is alleged to have been committed:

(i) a crime under section 122 , 123 , 124 , 125 , 126 , 127 , 127A , 128 , 129 , 185 , 186 , 298 or 300 of the Criminal Code ;

(ii) a crime under Section 299 of the Criminal Code in relation to a crime specified in a section referred to in subparagraph (i) ; or

(c) a child upon or in respect of whom an offence under section 35 (3) of the Police Offences Act 1935 is alleged to have been committed;

child means a person who is under the age of 17 years;

defendant means –

(a) in respect of an application under section 10 or 11 of the Child Protection Act 1974 , the respondent; or

(b) in respect of any other prescribed proceeding, a person charged with the crime or offence;

prescribed proceeding means –

(a) an application under section 10 or 11 of the Child Protection Act 1974 ; or

(b) a proceeding in which a person has been charged with a crime under section 122 , 123 , 124 , 125 , 126 , 127 , 127A , 128 , 129 , 185 , 186 , 298 or 300 of the Criminal Code ; or

(c) a proceeding in which a person has been charged with a crime under section 299 of the Criminal Code in relation to a crime specified in a section referred to in paragraph (b) ; or

(d) a proceeding in which a person has been charged with an offence under section 35 (3) of the Police Offences Act 1935 ;

prosecutor, in relation to an application under section 10 or 11 of the Child Protection Act 1974 , means the applicant;

trial includes the hearing of an application under section 10 or 11 of the Child Protection Act 1974 .

122B.   Sworn evidence of child

[Section 122B Inserted by No. 37 of 1995, s. 5 ]

(1)  A child under the age of 14 years is competent to give evidence on oath or after making solemn affirmation if the judge or person acting judicially is satisfied that the child –

(a) understands that he or she has, in giving evidence, an obligation to tell the truth that is over and above the ordinary duty to tell the truth; and

(b) can understand and respond rationally to questions which are put to the child in a manner and language appropriate to the age and understanding of the child.

(2)  A jury is not to be present during an inquiry for the purpose of determining the competency of a child to give evidence on oath or after making solemn affirmation under subsection (1) .

122C.   Unsworn evidence of child

[Section 122C Inserted by No. 37 of 1995, s. 5 ]A child under the age of 14 years who is not competent to give evidence under section 122B may give evidence without taking an oath or making a solemn affirmation if the judge or person acting judicially is satisfied that the child can give an intelligible account of events which he or she has observed or experienced.

122D.   Corroboration not required

[Section 122D Inserted by No. 37 of 1995, s. 5 ]

(1)  All rules of law or practice which provide that a person may not be convicted of an offence on the uncorroborated evidence of a child are abolished.

(2)  A judge is not to warn a jury, or suggest to a jury in any way, that it is unsafe to convict a person of an offence on the uncorroborated evidence of a child because children are classified by the law as unreliable witnesses.

122E.   Support person for child

[Section 122E Inserted by No. 37 of 1995, s. 5 ]

(1)  While giving evidence in any proceeding, a child is entitled to have near him or her a person who –

(a) may provide the child with support; and

(b) has been approved by the judge.

(2)  A judge must not approve a person for the purposes of subsection (1) (b) if that person is a witness in or a party to the proceeding.

122F.   Admission of prior statement of affected child

[Section 122F Inserted by No. 37 of 1995, s. 5 ]

(1)  In a prescribed proceeding the judge may, at his or her discretion, admit into evidence a statement made by an affected child and recorded in writing, electronically or otherwise if –

(a) the statement relates to a matter in issue in the proceeding; and

(b) the defendant has been given a copy of a written, electronic or other recording of the statement; and

(c) the defendant is given the opportunity to cross-examine the affected child.

(2)  Subsection (1) does not affect the operation of section 56A (6AA) or 57A of the Justices Act 1959 .

122G.   Evidence of affected child to be by closed circuit television

[Section 122G Inserted by No. 37 of 1995, s. 5 ]

(1)  Except where an order under section 122H is in force, the evidence of an affected child in a prescribed proceeding is to be given in a room other than the courtroom but within the court precincts and transmitted to the courtroom by means of closed circuit television.

(2)  While an affected child is giving evidence by means of closed circuit television, only the following persons may be present in the room with the child:

(a) a person approved under section 122E ;

(b) one person employed at the court in which the child is giving evidence.

122H.   Affected child may give oral evidence in court

[Section 122H Inserted by No. 37 of 1995, s. 5 ]

(1)  In a prescribed proceeding, the prosecutor may apply to a judge of the court hearing the proceeding for an order that section 122G does not apply to the proceeding.

(2)  On receipt of an application, the judge may make an order declaring that section 122G does not apply to the proceeding if the judge is satisfied that the affected child is able and wishes to give evidence in the presence of the defendant in the courtroom.

(3)  A judge of the court hearing a prescribed proceeding may at any time, on the application of the prosecutor or on his or her own motion, vary or revoke an order made under subsection (2) .

122I.   Special witness

[Section 122I Inserted by No. 37 of 1995, s. 5 ]

(1)  A judge may make an order declaring that a person who is giving, or is to give, evidence in the proceeding is a special witness if the judge is satisfied that –

(a) by reason of intellectual, mental or physical disability the person is, or is likely to be, unable to satisfactorily give evidence in the ordinary manner; or

(b) by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject-matter of the evidence or any other factor the court considers relevant, the person would be likely –

(i) to suffer severe emotional trauma; or

(ii) to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily.

(2)  An order under subsection (1) –

(a) may be made on the application of a party to the proceeding or the prosecutor or on the motion of the judge; and

(b) may include any one or more of the following orders:

(i) an order that the special witness have near him or her a person who may provide him or her with support and has been approved by the judge;

(ii) an order that the evidence of the special witness be given in a room other than the courtroom but within the court precincts and transmitted to the courtroom by means of closed circuit television; and

(iii) an order that, while the special witness is giving evidence, all persons other than those specified in the order be excluded from the courtroom.

(3)  For the purposes of an order of a kind referred to in subsection (2) (b) (i) , the judge must not approve a person who is, or is to be, a witness or party to the proceeding.

(4)  At any time, a judge may revoke or vary an order made under subsection (1) .

(5)  A judge may not make an order under subsection (1) in respect of an affected child.

(6)  While a special witness is giving evidence by means of closed circuit television, only the following persons may be present in the room with the special witness:

(a) a person approved under subsection (2) (b) (i) ;

(b) one person employed at the court in which the special witness is giving evidence.

122J.   Preliminary hearing

[Section 122J Inserted by No. 37 of 1995, s. 5 ]

(1)  In any proceeding in which a matter affecting a person as a witness is likely to require the giving of an approval under section 122E or the making of an order under section 122I , the prosecutor or the party who is to call that person as a witness is to apply for a preliminary hearing for the purpose of having all such matters dealt with before the hearing of the proceeding or trial is commenced.

(2)  A hearing under subsection (1) in relation to a proceeding may be provided for by the rules of the court in which that proceeding is being brought.

PART V - [Part V Heading substituted by No. 14 of 1976, s. 7 ]Oaths, affirmations, declarations, and depositions, and commissioners for declarations

Division 1 - [Part V, Div 1 Heading inserted by No. 14 of 1976, s. 7 ]Oaths and affirmations

123.   Form of oaths

Every oath shall be binding which is administered in such form and with such ceremonies as the person sworn declares to be binding.

124.   Normal method of administering oath

[Section 124 Substituted by 2 Geo. V No. 17, s. 2 ]The practice of a person sworn according to the English form of oath, kissing or touching the Bible or Testament, shall be discontinued and instead thereof the person tendering the oath shall hold the Bible or Testament in his hand and tender the oath, and the witness shall say, "I swear", to signify his taking of the oath.

125.   Alternative method of administering oath

Every witness in any civil or criminal proceeding, or in any inquiry or examination, shall be entitled, if he so wishes, instead of taking the oath usually administered to witnesses, to have an oath administered to him in the form following; that is to say: The officer or person, tendering the oath shall hold up his hand, and say to the witness,

"Witness, hold up your hand, and repeat after me: I swear by Almighty God that I will speak the truth, the whole truth, and nothing but the truth."

126.   Affirmation in lieu of oath

(1)  Every person shall be entitled as of right to make his solemn affirmation, instead of taking an oath, in all places and for all purposes where an oath is required by law, and such affirmation shall be of the same force and effect as an oath.

(2)  Every such affirmation shall be as follows: "I, A.B., do solemnly, sincerely, and truly declare and affirm", and shall then proceed with the words of the oath prescribed by law, omitting any words of imprecation or calling to witness.

(3)  Every affirmation in writing shall begin: "I, A.B., of ________ , do solemnly and sincerely affirm", and the form in lieu of jurat shall be: "Affirmed at ________ , this ___ day of _______ 19 __ , before me".

(4)  Every person commits perjury who makes any false statement on affirmation that would amount to perjury if made on oath.

127.   Oath not affected by want of religious belief

Where an oath has been duly administered and taken, the fact that the person to whom the same was administered had at the time of taking such oath no religious belief shall not for any purpose affect the validity of such oath.

128.   

[Section 128 Repealed by No. 37 of 1995, s. 6 ].  .  .  .  .  .  .  .  

129.   Persons to be admitted as interpreters on affirmation

(1)  If any person is called to act as interpreter and objects to take an oath, or is objected to as incompetent to take an oath, such person shall, if the court or person acting judicially is satisfied that the taking of an oath would have no binding effect on his conscience, be admitted to act as interpreter in the same way as if he had taken the usual oath required of a person so called, on his making the following promise or declaration: "I solemnly promise and declare that I will well and truly interpret the evidence given to the court".

(2)  Any person who, having made such affirmation, promise, or declaration, shall wilfully and corruptly falsely interpret shall be liable to be indicted, tried, and convicted for perjury as if he had taken an oath.

130.   Who may administer oaths

All courts, judges, and persons acting judicially are hereby empowered to administer an oath to all such witnesses as are lawfully called or voluntarily come before them respectively, or to take the affirmation of any such witness in lieu of such oath.

131.   Voluntary oath unlawful

[Section 131 Amended by 25 Geo. V No. 78 ]

(1)  It is unlawful for any justice or other person to administer, or cause or allow to be administered, or to receive or cause or allow to be received, any oath, affirmation in lieu of oath or affidavit touching any matter or thing whereof such justice or other person has not jurisdiction or cognizance by law.

(2)  Nothing herein contained shall be construed to extend to any oath, affirmation, or affidavit –

(a) before any justice or other person in any matter or thing touching any legal proceeding, or any proceeding before either House of Parliament, or any committee thereof;

(b) which may be required by any Act of the Parliament of the Commonwealth or of any State; or

(c) which may be required by the laws of any part of His Majesty's dominions or any foreign country to give validity to instruments in writing designed to be used there.

Division 2 - [Part V, Div. 2 Heading inserted by No. 14 of 1976, s. 4 ]Commissioners for declarations: Declarations

131A.   Appointment of commissioners for declarations

[Section 131A Inserted by No. 14 of 1976, s. 4 ]

(1)  The Attorney-General may appoint persons to be commissioners for declarations.

(2)  The Attorney-General shall cause to be published in the Gazette a notification of every appointment under this section and of the revocation of every such appointment.

(3)  No person who has attained the age of 70 years shall be appointed a commissioner for declarations, and a commissioner for declarations appointed under this section ceases to hold office as such on attaining that age.

131B.   Ex officio commissioners for declarations

[Section 131B Inserted by No. 14 of 1976, s. 4 ][Section 131B Subsection (2) amended by No. 46 of 1991, s. 4 and Sched. 2 ][Section 131B Subsection (2) amended by No. 68 of 1994, s. 3 and Sched. 1 ][Section 131B Subsection (2) amended by No. 30 of 1995, s. 3 and Sched. 1 ][Section 131B Subsection (2) amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 131B Substituted by No. 31 of 1997, s. 4, Applied:28 Jan 1998]

(1)  A person is a commissioner for declarations if the person has not attained the age of 70 years and –

(a) is authorised to practise as a member of a profession listed in Part 1 of the Schedule to the Statutory Declaration Regulations 1993 of the Commonwealth; or

(b) is a person listed in Part 2 of that Schedule; or

(c) is a member of a group of persons declared by the Attorney-General to be an occupational group for the purposes of this section.

(2)  The Attorney-General is to publish in the Gazette notice of any declaration under subsection (1)(c) and any revocation of such a declaration.

131BA.   Cessation of appointment

[Section 131BA Inserted by No. 31 of 1997, s. 4, Applied:28 Jan 1998] A person who, immediately before the commencement of the Evidence Amendment Act 1997 , was a commissioner for declarations by virtue of section 131B is taken to have ceased to be a commissioner on the commencement of that Act.

131C.   Title to be shown

[Section 131C Inserted by No. 14 of 1976, s. 4 ][Section 131C Substituted by No. 31 of 1997, s. 5, Applied:28 Jan 1998] If a commissioner for declarations signs in that capacity, the commissioner is to add after his or her signature –

(a) "Commissioner for Declarations"; and

(b) his or her title, if qualified as a commissioner under section 131B .

131D.   Effect of commissioner ceasing to hold office

[Section 131D Inserted by No. 14 of 1976, s. 4 ][Section 131D Amended by No. 31 of 1997, s. 6, Applied:28 Jan 1998] A declaration made or a document signed is not invalidated by reason only of the fact that the person before whom it was made or signed is no longer a commissioner for declarations.

132.   Statutory declarations

[Section 132 Subsection (1) amended by No. 14 of 1976, s. 5 ]

(1)  [Section 132 Subsection (1) amended by 25 Geo. V No. 78 ]It shall be lawful for any justice or other person by law authorized to administer an oath or for a commissioner for declarations to take and receive the declaration of any person voluntarily making the same before him in the following form, namely:

"I, A.B.[insert place of abode and occupation], do solemnly and sincerely declare that [here state the facts]; and I make this solemn declaration by virtue of section_____of the Evidence Act 1910. "

"Declared at_______________this_______________day of ____________________19_____ , before me, C.D., Justice of the Peace [or as the case may be]."

(2)  [Section 132 Subsection (2) added by No. 14 of 1976, s. 5 ]Where under any Act a declaration or document is authorized or required to be made or signed before a justice it is sufficient if that declaration or document is made or signed before a commissioner for declarations.

132AA.   Regulations

[Section 132AA Inserted by No. 14 of 1976, s. 6 ]The Governor may make regulations for the purposes of this Division.

Division 3 - [Part V, Div. 3 Heading inserted by No. 14 of 1976, s. 7 ]Provisions relating to affidavits of service and instruments, and acts out of the jurisdiction

132A.   Affidavit of service may be taken before a justice

[Section 132A Substituted by 25 Geo. V No. 21, s. 2 ]Any affidavit of the service in this State of any process or other document to be issued out of any court after the commencement of this section, and heretofore required to be taken before a commissioner of the Supreme Court, may be taken before a justice.

132B.   Attestation by justices out of the jurisdiction

[Section 132B Inserted by 7 Geo. VI No. 40, s. 2 ]Where by any Act any affidavit or declaration is required to be made, or any document to be signed before any justice, it shall be sufficient if such affidavit or declaration is made or document is signed before a justice for that part of His Majesty's dominions in which such affidavit or declaration is made or document is signed, as the case may be; and the signature of any person to such affidavit, declaration, or document purporting to be that of a justice for that part of His Majesty's dominions in which the same is made or signed, shall be received as prima facie evidence that such person is a justice and signed such affidavit, declaration, or document and had authority to administer such oath, or take such affidavit or declaration or to attest the signature to such document, as the case may be.

132C.   Powers of diplomatic agents, &c., as to affidavits and notarial acts out of State

[Section 132C Inserted by 10 Geo. VI No. 11, s. 2 ]

(1)  Where, by or under any Act, any oath, affidavit, or document is required to be administered by or made or signed before a commissioner for taking affidavits, or a justice, or where any notarial act is required to be done in any place out of this State for the purpose of being used in this State, it shall be sufficient if every such oath, affidavit, document, or notarial act is administered, made, signed, or done before or by any of His Majesty's diplomatic or consular agents exercising his functions in that place and the signature of any person to any oath, affidavit, document, or notarial act purporting to be that of one of His Majesty's diplomatic or consular agents shall be received as prima facie evidence that such person is a diplomatic or consular agent and administered such oath and signed such affidavit, document, or notarial act and had authority to administer such oath, or take such affidavit or declaration, or to attest the signature to such document, or to perform such notarial act, as the case may be.

(2)  [Section 132C Subsection (2) amended by No. 61 of 1952, s. 2 ]In this section –

affidavit includes affirmation, statutory or other declaration, acknowledgement, examination, and attestation or protestation of honour;

diplomatic agent means ambassador, envoy, high commissioner, minister, head of mission, commissioner, charge d'affaires, counsellor or secretary at an embassy or at a legation or high commissioner's office, or a trade commissioner, and includes a person appointed to hold or act in a prescribed office in a country or place outside Australia;

consular agent means consul-general, consul, vice-consul, or consular agent, or acting consul-general, acting consul, acting vice-consul, or acting consular agent;

oath includes affirmation and declaration;

prescribed office means an office (being an office of the Commonwealth) that is declared by the Governor, by proclamation, to be a prescribed office for the purposes of this section.

Division 4 - [Part V, Div. 4 Heading inserted by No. 14 of 1976, s. 7 ]Depositions

133.   Depositions on one charge admissible on trial of another

[Section 133 Amended by No. 36 of 1958, s. 4 and Sched. 3 ]Depositions taken on the preliminary or other investigation of any charge of crime may be read as evidence on the trial of the accused for any other offence, although of a higher or different nature, if they would be admissible on his trial for the offence in respect of which they were taken; and the depositions may be proved in the same manner as if the accused were on trial for that offence.

134.   Depositions under the Justices Act 1959

[Section 134 Amended by 25 Geo. V No. 78 ]

(1)  [Section 134 Subsection (1) amended by No. 25 of 1991, s. 4 ]A deposition taken in any proceeding under Part VII of the Justices Act 1959 , may be produced and given in evidence at the trial of the person for or against whom it was taken –

(a) if it is proved to the satisfaction of the Supreme Court that the witness is dead, or out of Tasmania, or insane, or so ill as not to be able to travel, although there may be a prospect of his recovery; or

(b) if the witness is kept out of the way by the person accused –

and the court is satisfied that the deposition was given before justices or received as evidence by justices.

(2)  If there is a prospect of the recovery of a witness proved to be too ill to travel, the court shall not be obliged to receive the deposition, but may postpone the trial, discharging the jury, where a jury has been empanelled, if the court thinks fit.

(3)  The deposition of a witness taken before a coroner may in the like cases be produced and given in evidence at the trial of any person who shall have been present during the examination of the witness.

135.   Depositions of persons dangerously ill

[Section 135 Amended by 25 Geo. V No. 78 ]

(1)  In this section –

offence means any crime punishable on indictment;

court means a court having jurisdiction to hear and determine a charge of an offence.

(2)  If a person dangerously ill and unable to travel is believed to be able to give material and important information relating to any offence, or to a person accused thereof, the evidence of such person may be taken as hereinafter provided.

(3)  If it is made to appear to the satisfaction of any justice –

(a) that any such person is dangerously ill and not likely to recover from such illness; and

(b) that the evidence of such person will probably be lost unless forthwith taken –

the justice may take in writing the statement on oath of such person; and the justice shall thereupon subscribe the same, and add thereto a statement of his reason for taking the same, and of the day and place when and where the same was taken, and of the names of the persons, if any, present at the taking thereof.

(4)  Where any person likely to be affected by such statement has been charged with any offence in relation to which the statement is to be taken, the justice before taking the statement shall give to such person, if practicable, reasonable notice in writing of the time and place appointed for taking the statement, and shall allow such person or his attorney (if either is present at such time and place) full opportunity for cross-examining the deponent.

(5)  Where it has not been practicable to give such notice as aforesaid before the statement is taken, the justice, wherever practicable, shall afford to any person charged with the offence to which the statement relates, an opportunity to cross-examine the deponent upon the statement at some later date before the committal or trial of the person so charged; and, if the justice who took the deposition is not available for that purpose, any justice instructed by the Attorney-General so to do may act in his place.

(6)  Where the statement is to be taken at the instance of any person charged or likely to be charged with any offence to which the statement relates, the like notice of the intention to take the same and the like opportunity for cross-examination as aforesaid shall be given to the Attorney-General or Solicitor-General.

(7)  The deposition when taken shall be forwarded with the endorsement thereon required by subsection (3) to the Attorney-General.

(8)  A copy of every such deposition shall be given to any persons affected criminally thereby as soon after the same is taken as is practicable.

(9)  A deposition taken under this section may be produced and read as evidence, either for or against the accused, upon the trial of any offender or offence to which it relates –

(a) if it is proved that the deponent is dead, or that there is no reasonable probability that the deponent will ever be able to travel or to give evidence;

(b) the deposition purports to be signed by the justice by or before whom it purports to be taken; and

(c) it is shown to the satisfaction of the court by the contents of the deposition or the statement of the justice before whom the same is taken attached thereto, or otherwise howsoever –

(i) that the person (whether prosecutor or accused) against whom it is proposed to read such deposition, or his attorney, had or might have had, if he had chosen to be present, full opportunity of cross-examining the deponent;

(ii) in cases where the person against whom it is proposed to read the deposition is not shown to have been present, or represented by attorney, at the taking thereof, that notice in writing of the intention to take such deposition was given to such person a reasonable and sufficient time beforehand, having regard to the urgency of the circumstances, to have enabled him to be present; or

(iii) that it was not practicable to give the person against whom the deposition is to be read an opportunity to cross-examine the deponent.

(10)  The fact that the person against whom the deposition is to be read did not receive a notice in writing as hereinbefore prescribed shall not in any case prevent the admissibility of the deposition if the court is satisfied that he had an opportunity for cross-examining the deponent thereon.

(11)  Nothing in this section contained shall render inadmissible in evidence any declaration in writing or otherwise which is admissible in evidence as a dying declaration.

PART VI - [Part VI Heading amended by No. 2 of 1977, s. 2 ]Evidence in shorthand or by tape recording

136.   Examiners of shorthand writers to be appointed by Governor

[Section 136 Amended by 25 Geo. V No. 78 ]The judges of the Supreme Court may appoint as many fit persons as may be required to be examiners to conduct the examinations of applicants for licence as shorthand writers, subject to the Rules of Court.

137.   Shorthand writers to be licensed

[Section 137 Amended by No. 2 of 1977, s. 3 ]The Chief Justice may license fit and proper persons to be shorthand writers for the purpose of taking down in shorthand and transcribing, or causing to be transcribed, any evidence as provided by section 139 and the rules of court under the Supreme Court Civil Procedure Act 1932 and the Criminal Code Act 1924 , and may cancel the licence of any such person.

138.   Shorthand writers to be sworn

(1)  Every person licensed as a shorthand writer, before entering upon the duties of his office, shall take before a judge of the Supreme Court the following oath:

"I swear that I will faithfully take down and transcribe, or cause to be transcribed, the evidence I am required by law to take down in any cause or matter."

(2)  Every judge of the Supreme Court is hereby authorized to administer, or cause to be administered, such oath to every such person.

(3)  [Section 138 Subsection (3) omitted by 25 Geo. V No. 78 ].  .  .  .  .  .  .  .  

139.   Power of judge or chairman of courts or justices, &c., to direct evidence to be taken down in shorthand in certain cases

[Section 139 Amended by 25 Geo. V No. 78 ]

(1)  [Section 139 Subsection (1) amended by No. 2 of 1977, s. 4 ]Subject to the provisions of the rules of court under the Supreme Court Civil Procedure Act 1932 and the Criminal Code Act 1924 , any judge of the Supreme Court, or any commissioner, warden, chairman, or justice of any court, and any person acting judicially, may, at his discretion, on the application of all the parties to any cause, matter, inquiry, or proceeding, either civil or criminal, depending before him, direct that the evidence to be given in such cause, matter, inquiry, or proceeding, and any ruling, direction, summing up, address, or submission, be taken down in shorthand by a shorthand writer licensed as aforesaid, provided a shorthand writer be then available for that purpose.

(2)  [Section 139 Subsection (2) amended by No. 2 of 1977, s. 4 ]Subject to the provisions of the rules of court referred to in subsection (1) , the judge, commissioner, warden, chairman, justice, or person acting judicially may decide in his discretion by whom the costs shall be paid.

(3)  [Section 139 Subsection (3) added by No. 2 of 1977, s. 4 ]Without prejudice to its generality in either case, the power to make rules of court under the Supreme Court Civil Procedure Act 1932 and the Criminal Code Act 1924 includes, and shall always be deemed to have included, power to make rules of court for or with respect to –

(a) the taking of shorthand notes of the evidence given in legal proceedings in the relevant court and of any ruling, direction, summing up, address, or submission given or made in those proceedings;

(b) the provisions of transcripts of shorthand notes so taken in those proceedings; and

(c) the charges to be paid for transcripts so provided and the exemption from the payment of those charges in cases prescribed in those rules.

140.   Shorthand writer to be officer of court whilst in performance of duty

Every shorthand writer licensed as aforesaid –

(a) shall for the time being be an officer of the court in or for which he shall be required to take down evidence; and

(b) shall be under the direction of the said court with regard to the performance of his duty in taking down and transcribing, or causing to be transcribed, such evidence.

141.   Transcript of notes to be received as evidence prima facie

[Section 141 Amended by 25 Geo. V No. 78 ][Section 141 Amended by No. 2 of 1977, s. 5 ]The shorthand writer's shorthand notes and also the transcript thereof, either by writing, printing, or typewriting when certified to as correct by a shorthand writer licensed as aforesaid, shall be received as prima facie evidence of the evidence, ruling, direction, summing up, address, or submission taken down pursuant to section 139 or pursuant to the rules of court under the Supreme Court Civil Procedure Act 1932 or the Criminal Code Act 1924 .

142.   Right of witness to sign either shorthand notes or transcript of evidence

[Section 142 Amended by 25 Geo. V No. 78 ][Section 142 Amended by No. 2 of 1977, s. 6 ]Any witness may at his option sign either the shorthand notes or the transcript of any deposition or evidence taken down in shorthand under section 139 or under the rules of court under the Supreme Court Civil Procedure Act 1932 or the Criminal Code Act 1924 , which is required by law to be put into writing and signed by the witness.

143.   

[Section 143 Repealed by 25 Geo. V No. 78 ].  .  .  .  .  .  .  .  

144.   Rules of court

[Section 144 Amended by 25 Geo. V No. 78 ]The judges of the Supreme Court may make rules of court prescribing –

(a) the nature or character, standard, and requirements of the examinations or tests to be applied to applicants for licence as shorthand writers, and which such applicants shall undergo;

(b) the form of register of such applicants, and the mode of keeping the register, and the mode of selecting persons therefrom;

(c) the fees payable to any shorthand writer licensed as aforesaid for his services and for a transcript of his notes –

and generally for the purposes of this Part.

144A.   Power to make rules of court, &c., with respect to procedure of courts extended to matters connected with tape recording of legal proceedings

[Section 144A Inserted by No. 2 of 1977, s. 7 ]

(1)  Where an Act confers a power to make rules with respect to, or for the purpose of regulating, the procedure and practice of a court or the proceedings of or before a court, that power, without prejudice to its generality, includes, and shall always be deemed to have included, power to make rules for or with respect to –

(a) the recording by mechanical means on to a tape or other apparatus of the evidence given in legal proceedings in that court and of any ruling, direction, summing up, address, or submission given or made in those proceedings;

(b) the provision of transcripts of evidence and of any ruling, direction, summing up, address, or submission recorded as provided in paragraph (a) ;

(c) the charges to be paid for transcripts so provided and the exemption from the payment of those charges in cases prescribed in those rules; and

(d) the retention of tapes or other apparatus on to which evidence or any ruling, direction, summing up, address, or submission has been so recorded.

(2)  For the purposes of subsection (1) , rules includes rules of court and rules of practice.

144B.   Tape recording and transcript thereof to be received as prima facie evidence

[Section 144B Inserted by No. 2 of 1977, s. 7 ]Where any evidence, ruling, direction, summing up, address, or submission given or made in a legal proceeding is recorded by mechanical means on to a tape or other apparatus pursuant to rules to which section 144A (1) applies, the tape or other apparatus and a transcript of the evidence, ruling, direction, summing up, address, or submission recorded on the tape or other apparatus shall be received as prima facie evidence of the evidence, ruling, direction, summing up, address, or submission so recorded in that proceeding.

PART VII - [Part VII Heading amended by No. 91 of 1974, s. 12 ]Evidence for use in places outside the State

145.   Interpretation

[Section 145 Amended by 25 Geo. V No. 78 ][Section 145 Amended by No. 52 of 1967, s. 2 ][Section 145 Amended by No. 91 of 1974, s. 7 ]In this Part –

affidavit means any written statement made on oath before a solicitor of the Supreme Court or before a person appointed as provided in section 146A ;

declaration means any written statement declared by the maker thereof to be true in the presence of a solicitor of the Supreme Court or in the presence of a person appointed as provided in section 146A ;

judicial authority means a judge or other person who, or a court or body which, is authorized by the law of a place outside this State to take or receive evidence on oath in that place.

146.   Power of solicitor to take affidavit or declaration for purposes of Act

[Section 146 Amended by No. 52 of 1967, s. 3 ][Section 146 Amended by No. 91 of 1974, s. 8 ]It shall be lawful for any solicitor of the Supreme Court or any person appointed as provided in section 146A to take the affidavit or declaration of any person in relation to any matter, whether civil or criminal, which is certified in accordance with this Act to be pending before any judicial authority.

146A.   Power of person appointed by judicial authority to take evidence and administer oaths

[Section 146A Inserted by No. 52 of 1967, s. 4 ][Section 146A Amended by No. 91 of 1974, s. 9 ]

(1)  Subject to subsection (2) , where a judicial authority desires to take evidence in this State that authority may appoint a person to take or receive evidence in this State, and a person so appointed has power to take or receive evidence in this State for that authority and, for that purpose, to administer an oath.

(2)  Where the judicial authority is not a court or judge, a person so appointed has no power to take or receive evidence, or to administer an oath, in this State unless he has first obtained the written consent of the Attorney-General.

147.   How affidavit or declaration to be intituled

[Section 147 Amended by 25 Geo. V No. 78 ]Every such affidavit or declaration shall be intituled "In the matter of the Evidence Act 1910, Part VII"; and every such declaration shall be expressed to be made in pursuance of the provisions of that Act.

148.   Certificate of consul or vice-consul or consular agent

[Section 148 Subsection (1) amended by No. 91 of 1974, s. 10 ]

(1)  [Section 148 Subsection (1) amended by No. 52 of 1967, s. 5 ]No such affidavit or declaration shall be taken unless the solicitor or other person taking it has received a written certificate from a consul or vice-consul or consular agent of the State to which such judicial authority belongs that he believes the said affidavit or declaration to be required for the purpose of a matter pending before or in that authority.

(2)  The jurat or attestation of the said affidavit or declaration shall state the name and official designation of the consul or vice-consul or consular agent on whose certificate the said affidavit or declaration has been taken.

149.   False affidavit or declaration

[Section 149 Amended by 25 Geo. V No. 78 ]

(1)  Every such affidavit or declaration shall be deemed to have been made in a judicial proceeding, and any person who falsely makes any such affidavit or declaration shall be guilty of perjury, and be liable to such punishment as by law may be inflicted for that offence.

(2)  [Section 149 Subsection (2) amended by No. 91 of 1974, s. 11 ]In any prosecution for perjury in respect of any such affidavit or declaration, it shall not be necessary to prove that any judicial or other proceeding was actually pending before or in a judicial authority, or that any such certificate as is mentioned in section 148 was actually given, nor shall any evidence to the contrary be admissible.

PART VIII - Taking of evidence for foreign and Australian courts

[Part VIII  Inserted by No. 13 of 1992, s. 4 ]

150.   Interpretation

[Section 150 Inserted by No. 13 of 1992, s. 4 ]In this Part, unless the contrary intention appears –

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;

proceedings means –

(a) proceedings in any civil or commercial matter; or

(b) proceedings in or before a court in relation to the commission of an offence or an alleged offence;

property includes any land, chattel or other corporeal property of any description;

request includes any commission, order or other process issued by or on behalf of a requesting court;

requesting court means a court or tribunal by or on whose behalf a request is issued, as referred to in section 151 .

151.   Application to the Supreme Court for assistance in obtaining evidence for proceedings in other court

[Section 151 Inserted by No. 13 of 1992, s. 4 ]

(1)  If an application is made to the Supreme Court for an order for evidence to be obtained in Tasmania and the Supreme Court is satisfied –

(a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal exercising jurisdiction in a place outside Tasmania; and

(b) that the evidence to which the application relates is to be obtained for the purposes of proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated –

the provisions of sections 152 to 155 (inclusive) apply.

(2)  Sections 152 to 155 do not apply in respect of proceedings relating to the commission of an offence or an alleged offence unless the requesting court is a court of a place in Australia or of New Zealand.

152.   Power of the Supreme Court to give effect to application for assistance

[Section 152 Inserted by No. 13 of 1992, s. 4 ]

(1)  The Supreme Court has power, in relation to an application referred to in section 151 , by order to make such provision for obtaining evidence in Tasmania as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made.

(2)  An order under this section may require a specified person to take such steps as the court may consider appropriate for that purpose.

(3)  Without limiting the generality of subsections (1) and (2) , an order under this section may, in particular, make provision –

(a) for the examination of witnesses, either orally or in writing; and

(b) for the production of documents; and

(c) for the inspection, photographing, preservation, custody or detention of any property; and

(d) for the taking of samples of any property and the carrying out of any experiments on or with any property; and

(e) for the medical examination of any person; and

(f) without limiting paragraph (e) , for the taking and testing of samples of blood from any person.

(4)  An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of proceedings in the Supreme Court (whether or not proceedings of the same description as those to which the application for the order relates).

(5)  Subsection (4) does not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath where this is asked for by the requesting court.

(6)  An order under this section shall not require a person –

(a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in the person's possession, custody or power; or

(b) to produce any documents other than particular documents specified in the order and appearing to the court making the order to be, or to be likely to be, in the person's possession, custody or power.

(7)  A person who, by virtue of an order under this section, is required to attend at any place shall be entitled to the like conduct money and payment for expenses and loss of time on attendance as a witness in proceedings before the Supreme Court.

153.   Privilege of witnesses

[Section 153 Inserted by No. 13 of 1992, s. 4 ]

(1)  A person shall not be compelled by virtue of an order under section 152 to give any evidence which the person could not be compelled to give –

(a) in similar proceedings in Tasmania; or

(b) in similar proceedings in the place in which the requesting court exercises jurisdiction.

(2)  Subsection (1) (b) does not apply unless the claim of the person in question to be exempt from giving evidence is either –

(a) supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled); or

(b) conceded by the applicant for the order.

(3)  Where such a claim by any person is not so supported or conceded, the person may (subject to the other provisions of this section) be required to give the evidence to which the claim relates, but that evidence shall not be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim.

(4)  In this section, references to giving evidence include references to answering any question and to producing any document, and the reference in subsection (3) to the transmission of evidence given by a person shall be construed accordingly.

154.   Offence

[Section 154 Inserted by No. 13 of 1992, s. 4 ]If any person, in giving any testimony (either orally or in writing) otherwise than on oath, where required to do so by an order under section 152 , makes a statement –

(a) which the person knows to be false in a material particular; or

(b) which is false in a material particular and which the person does not believe to be true –

the person is guilty of a crime and is liable to punishment on indictment under the Criminal Code .

155.   Operation of other laws

[Section 155 Inserted by No. 13 of 1992, s. 4 ]This Part is not intended to exclude or limit the operation of any other law of the State that makes provision for the taking of evidence in the State for the purpose of a proceeding outside the State.

156.   Rules of Court

[Section 156 Inserted by No. 13 of 1992, s. 4 ]

(1)  Rules may be made under the Supreme Court Civil Procedure Act 1932 for or with respect to –

(a) the manner in which an application mentioned in section 151 is to be made; and

(b) the circumstances in which an order can be made under section 152 ; and

(c) the manner in which any reference mentioned in section 152 (3) is to be made.

(2)  Any such rules may include such incidental, supplementary and consequential provisions as are necessary or convenient.

PART IX - Examination of witnesses outside the State

[Part IX  Inserted by No. 13 of 1992, s. 4 ]

157.   Interpretation

[Section 157 Inserted by No. 13 of 1992, s. 4 ]

(1)  In this Part, unless the contrary intention appears –

Australia includes –

(a) the Territories of the Commonwealth (whether internal or external) for the government of which as a Territory provision is made by any Commonwealth Act; and

(b) New Zealand;

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 Part;

inferior court means a court of the State, except when exercising federal jurisdiction, not being the Supreme Court within the meaning of section 158 ;

judicial authority, in relation to a place outside the State, means –

(a) the Supreme Court of another State or a Territory of the Commonwealth; or

(b) a court in that place that has the power or jurisdiction to give effect to a request made under section 158 (2) (c) ; or

(c) a court or person prescribed as a judicial authority for that place.

(2)  In this Part, a reference to a place outside the State shall be taken to refer to a place outside the State whether within or outside Australia.

158.   Proceedings in the Supreme Court

[Section 158 Inserted by No. 13 of 1992, s. 4 ]

(1)  In this section, Supreme Court means that Court except when exercising federal jurisdiction.

(2)  In any civil or criminal proceeding before the Supreme 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 the State, an order –

(a) 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

(b) for the issue of a commission for the examination of the person on oath or affirmation at any place outside the State; or

(c) 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.

(3)  In determining whether it is in the interests of justice to make an order under subsection (2) in relation to the taking of evidence of a person, the matters to which the Supreme Court shall have regard include the following matters:

(a) whether the person is willing or able to come to the State to give evidence in the proceeding;

(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding;

(c) whether, having regard to the interest of the parties to the proceeding, justice will be better served by granting or refusing the order.

(4)  Where the Supreme Court makes an order under subsection (2) (a) or (2) (b) , the Court may, in its discretion, at the time of the making of the order or at a subsequent time, 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.

(5)  Where the Supreme Court makes, in relation to a proceeding, an order under subsection (2) (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:

(a) the examination, cross-examination or re-examination of the person, whether the evidence of the person is given orally, upon affidavit or otherwise;

(b) the attendance of the legal representative of each party to the proceeding and the participation of those persons in the examination in appropriate circumstances;

(c) any prescribed matter.

(6)  Subject to subsection (7) , the Supreme 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 (2) or a record of that evidence.

(7)  Evidence of a person tendered pursuant to subsection (6) is not admissible if –

(a) it appears to the satisfaction of the Supreme Court at the hearing of the proceeding that the person is in the State and is able to attend the hearing; or

(b) the evidence would not have been admissible had it been given or produced at the hearing of the proceeding.

(8)  Where it is in the interests of justice to do so, the Supreme Court may, in its discretion, exclude from the proceeding evidence taken in an examination held as a result of an order made under subsection (2) , notwithstanding that it is otherwise admissible.

(9)  The power vested in the Supreme Court under subsection (2) may be exercised in chambers.

(10)  In this section, a reference to evidence taken in an examination includes a reference to –

(a) a document produced at the examination; and

(b) answers made, whether in writing, or orally and reduced to writing, to any written interrogatories presented at the examination.

159.   Proceedings in inferior courts

[Section 159 Inserted by No. 13 of 1992, s. 4 ]

(1)  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 a kind referred to in section 158 (2) for the purpose of that proceeding as the Supreme Court has under that subsection for the purpose of a proceeding in the Supreme Court.

(2)  Sections 158 (6) , 158 (7) and 158 (8) apply in relation to evidence taken in an examination held as a result of an order made by the Supreme Court by virtue of this section in relation to an inferior court as if –

(a) in those sections –

(i) a reference to the proceeding were a reference to the proceeding in the inferior court; and

(ii) a reference to the Supreme Court were a reference to the inferior court; and

(b) in sections 158 (6) and 158 (8) , a reference to an order made under subsection (2) were a reference to an order made by the Supreme Court by virtue of this section.

(3)  The power vested in the Supreme Court under subsection (1) may be exercised in chambers.

160.   Exclusion of evidence in criminal proceedings

[Section 160 Inserted by No. 13 of 1992, s. 4 ]This Part does not affect the power of a court in a criminal proceeding to exclude evidence in the exercise of its discretion.

161.   Operation of other laws

[Section 161 Inserted by No. 13 of 1992, s. 4 ]This Part is not intended to exclude or limit the operation of any other 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 the State for the purpose of a proceeding in the State.

162.   Regulations and Rules of Court

[Section 162 Inserted by No. 13 of 1992, s. 4 ]

(1)  The Governor may make regulations, not inconsistent with this Part, for or with respect to any matter that by this Part is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Part and, in particular, for or with respect to the practice and procedure of the Supreme Court in proceedings for the making of an order under section 158 or 159 .

(2)  The power of the judges of the Supreme Court, or a majority of them, to make Rules of Court, pursuant to section 197 of the Supreme Court Civil Procedure Act 1932 , regulating the practice and procedure of the Supreme Court extends, for the purpose of regulating proceedings brought under this Part in or before that Court, to making any rules, not inconsistent with this Part or with any regulations made under this section, prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Part and, in particular, for or with respect to the practice and procedure of the Supreme Court in proceedings for the making of an order under section 158 or 159 of this Act.

(3)  This section does not affect any power to make regulations or rules under any other law.

163.   Funding of closed circuit television equipment

(1)  In this section –

affected child has the same meaning as in Part IVA ;

special witness has the same meaning as in section 122I .

(2)  If the State acquires equipment for the purpose of enabling affected children and special witnesses to give evidence in proceedings by closed circuit television under section 122G or under an order made under section 122I , the whole or part of the costs of that acquisition may be met from the Criminal Injuries Compensation Fund established under section 11 of the Criminal Injuries Compensation Act 1976 .

164.   Transitional provisions

(1)  Subject to subsection (2) , the amendments effected by the Evidence Amendment Act 1991 apply to a commission referred to in section 14(1)(a) or a board of inquiry referred to in section 14(1)(b) issued or appointed before the commencement of the Evidence Amendment Act 1991 that has not completed its inquiry at that commencement.

(2)  Any act done or omission made before the commencement of the Evidence Amendment Act 1991 does not constitute an offence by reason only of an amendment to this Act effected by the Evidence Amendment Act 1991 .

(3)  The amendments to this Act effected by the Evidence Amendment (Unsworn Statements) Act 1993 do not apply to criminal proceedings that began before the commencement of that Act.

(4)  For the purposes of subsection (3) , criminal proceedings are taken to have begun if the defendant has been called upon to plead.

(5)  Nothing in section 5 (1) of the Evidence Amendment (Evidence on Commission) Act 1992 affects –

(a) any application to any court or judge which is pending at the commencement of that Act; or

(b) any certificate given for the purposes of such an application; or

(c) any power to make an order on such an application; or

(d) the operation or enforcement of any order made on such an application.

SCHEDULE 1

[Schedule 1 Amended by 25 Geo. V No. 78 ]

Section 2

SCHEDULE 2

Section 48 (1) (c)

SCHEDULE 3

[Schedule 3 Substituted by No. 5 of 1990, s. 3 and Sched. 1 ]

Section 51

SCHEDULE 4

[Schedule 4 Added by 25 Geo. V No. 78 ][Schedule 4 Amended by No. 41 of 1967, s. 5 and Sched. 1 ][Schedule 4 Amended by No. 14 of 1976, s. 8 ][Schedule 4 Amended by No. 5 of 1985, s. 3 and Sched. 1 ][Schedule 4 Amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. III ][Schedule 4 Amended by No. 36 of 1992, s. 6 ][Schedule 4 Amended by No. 25 of 1994, s. 45 and Sched. 3 ][Schedule 4 Amended by No. 68 of 1994, s. 3 and Sched. 1 ][Schedule 4 Amended by No. 30 of 1995, s. 3 and Sched. 1 ][Schedule 4 Amended by No. 75 of 1995, s. 3 and Sched. 1 ][Schedule 4 Amended by No. 37 of 1996, s. 3 and Sched. 1 ][Schedule 4 Amended by No. 57 of 1996, s. 55 and Sched. 5 ][Schedule 4 Amended by No. 61 of 1996, s. 15 ]

Section 47 (a) (i) and (ii)

PART I - Offices Under the Commonwealth

PART II - State and Colonial Offices

[Part II of Schedule 4 Amended by No. 17 of 1996, s. 36, Applied:23 Mar 1998]

SCHEDULE 5 - Affidavit of Identity

[Schedule 5 Added by 7 Geo. VI. No 40, s. 2 ]

Section 77

Form