Evidence Act 2001 (Tas)

Evidence Act 2001

An Act to provide for matters relating to evidence [Royal Assent 17 December 2001]

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:

Chapter 1 - Preliminary

PART 1 - Formal matters

1. Short title This Act may be cited as the Evidence Act 2001 .

2. Commencement This Act commences on a day to be proclaimed.

2A. Numbering of Act (1) In order to maintain consistent numbering between this Act and the Evidence Act 1995 of the Commonwealth – (a) if the Commonwealth Act contains a section that is not in this Act, that section number and heading are included in this Act despite the omission of the body of the section; and (b) if this Act contains a section that is not in the Commonwealth Act, that section is numbered so as to maintain consistency in numbering between sections common to both Acts. (2) A section number and heading referred to in subsection (1)(a) form part of this Act. Note 1: A note appears under each heading of a kind referred to in subsection (1)(a) describing the omitted section of the Commonwealth Act. Note 2: A note appears under each section of a kind referred to in subsection (1)(b) highlighting the non-appearance of an equivalent section in the Commonwealth Act. Note 3: This section does not appear in the Commonwealth Act.

3. Interpretation (1) In this Act – admission means a previous representation that is – (a) made by a person who is or becomes a party to a proceeding, including a defendant in a criminal proceeding; and (b) adverse to the person's interest in the outcome of the proceeding; 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 of the Commonwealth or of any other jurisdiction; or (c) a person appointed, authorised or otherwise determined for the purposes of such Act to perform an analysis; or (d) any other person who has the appropriate qualifications or experience to perform an analysis; associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for – (a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or (b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted; Australia includes the external Territories; Australian court means – (a) the High Court; or (b) a court exercising federal jurisdiction; or (c) a court of a State or Territory; or (d) a judge, justice or arbitrator under an Australian law; or (e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or (f) a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence; Australian law means a law of the Commonwealth or a State or Territory of the Commonwealth; Australian lawyer has the meaning it has in the Legal Profession Act 2007 ; Australian legal practitioner has the meaning it has in the Legal Profession Act 2007 ; Australian or overseas proceedings means a proceeding (however described) in an Australian court or a foreign court; Australian Parliament means Parliament of the Commonwealth or another State or the Legislative Assembly of a Territory; Australian practising certificate has the meaning it has in the Legal Profession Act 2007 ; Australian-registered foreign lawyer has the meaning it has in the Legal Profession Act 2007 ; Australian Statistician means the Australian Statistician referred to in section 5(2) of the Australian Bureau of Statistics Act 1975 of the Commonwealth and includes any person to whom the powers of the Australian Statistician under section 12 of the Census and Statistics Act 1905 of the Commonwealth have been delegated; business means a business referred to in section 3A ; case of a party means the facts in issue in respect of which the party bears the legal burden of proof; child means a child of any age and includes the meaning given in subsection (13) ; civil penalty means civil penalty referred to in subsection (6) ; civil proceeding means a proceeding other than a criminal proceeding; coincidence evidence means evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection; coincidence rule means the rule referred to in section 98 ; Commonwealth-owned body corporate means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Law, be – (a) a wholly-owned subsidiary of the Commonwealth; or (b) a wholly-owned subsidiary of another body corporate that is under this definition a Commonwealth-owned body corporate because of the application of paragraph (a) , including the application of that paragraph together with another application or other applications of this paragraph; Commonwealth record means a record made by – (a) a Department within the meaning of the Public Service Act 1999 of the Commonwealth; or (b) the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or (c) a person or body, other than a Legislative Assembly, holding office or exercising power under or because of the Commonwealth Constitution or a law of the Commonwealth for the purpose of exercising that power; or (d) a body or organisation, other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose – (i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or (ii) by the Governor-General; or (iii) by a Minister of the Commonwealth; or (e) any other body or organisation that is a Commonwealth-owned body corporate – and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a) , (b) , (c) , (d) or (e) but does not include a record made by a person or body holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned; counselling communication means a counselling communication referred to in section 127B(1) ; court means a Tasmanian court; credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person's ability to observe or remember facts and events about which the person made the representation; credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give, evidence; credibility evidence is defined in section 101A ; credibility rule means the rule referred to in section 102 ; criminal proceeding means a prosecution for an offence and includes – (a) a proceeding for the committal of a person for trial or sentence for an offence; and (b) a proceeding relating to bail – but does not include a prosecution that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 of the Commonwealth; cross-examination means cross-examination referred to in subsection (3) ; cross-examiner means a party who is cross-examining a witness; document means any record of information and includes – (a) anything on which there is writing; or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or (d) any map, plan, drawing or photograph; electronic communication has the meaning it has in the Electronic Transactions Act 2000 ; examination in chief means examination in chief referred to in subsection (2) ; exercise of a function includes performance of a duty; fax, in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy; foreign court means any court, including any person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body is empowered to require the answering of questions or the production of documents, of a foreign country or a part of such a country; function includes power, authority or duty; Governor of a State includes any person for the time being administering the Government of the State; Governor-General means the Governor-General of the Commonwealth and includes any person for the time being administering the Government of the Commonwealth; hearsay rule means the rule referred to in section 59 ; identification evidence means evidence that is – (a) an assertion by a person to the effect that a defendant was, or resembles, visually, aurally or otherwise, a person who was, present at or near a place where – (i) the offence for which the defendant is being prosecuted was committed; or (ii) an act connected to that offence was done – at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or (b) a report, whether oral or in writing, of such an assertion; investigating official means – (a) a police officer, other than a police officer who is engaged in covert investigations under the orders of a superior; or (b) a person appointed by or under an Australian law, other than a person who is engaged in covert investigations under the orders of a superior and whose functions include the prevention or investigation of offences; joint sitting means – (a) in relation to the Parliament of the Commonwealth, a joint sitting of the members of the Senate and of the House of Representatives convened by the Governor-General under section 57 of the Commonwealth Constitution or under any other Act of the Commonwealth; or (b) in relation to a bicameral legislature of a State, a joint sitting of both Houses of the legislature convened under a law of the State; judge, in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held; law means a law referred to in subsection (11) ; leading question means a question asked of a witness that – (a) directly or indirectly suggests a particular answer to the question; or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked; legal counsel means an Australian lawyer employed in or by a government agency or other body who by law is exempted from holding an Australian practising certificate, or who does not require an Australian practising certificate, to engage in legal practice in the course of that employment; Legislative Assembly means – (a) any present or former Legislative Assembly of a Territory; and (b) the Australian Capital Territory House of Assembly; member of the Australian Federal Police includes a special member or a staff member of the Australian Federal Police; offence means an offence against or arising under an Australian law; official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence; opinion rule means the rule referred to in section 76 ; overseas-registered foreign lawyer has the meaning it has in Part 2.6 of Chapter 2 of the Legal Profession Act 2007 ; parent includes a parent referred to in subsection (14) ; police officer means – (a) a member of the Australian Federal Police; or (b) a member of the police force of a State or Territory of the Commonwealth; postal article means a postal article as defined in the Australian Postal Corporation Act 1989 of the Commonwealth; previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced; prior consistent statement of a witness means a previous representation that is consistent with evidence given by the witness; prior inconsistent statement of a witness means a previous representation of the witness that is inconsistent with evidence given by the witness; probative value means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue; prosecutor means a person who institutes or is responsible for the conduct of a prosecution; public document means a document that – (a) forms part of the records of the Crown in any of its capacities; or (b) forms part of the records of the government of a foreign country; or (c) forms part of the records of a person or body holding office or exercising a function under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country; or (d) is being kept by or on behalf of the Crown, such a government or such a person or body – and includes the records of the proceedings of, and papers presented to – (e) an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; and (f) a legislature of a foreign country, including a House or committee, however described, of such a legislature; re-examination means re-examination referred to in subsection (4) ; representation includes – (a) an express or implied representation, whether oral or in writing; and (b) a representation to be inferred from conduct; and (c) a representation not intended by its maker to be communicated to or seen by another person; and (d) a representation that for any reason is not communicated; seal includes a stamp; serious offence means – (a) in the case of a defendant of or over the age of 18 years, an indictable offence that cannot be dealt with summarily without the consent of the defendant; and (b) in the case of a defendant under the age of 18 years, any indictable offence for which the defendant has been detained; sexual offence means – (a) a crime under section 122 , 124 , 124A , 124B , 124C , 125 , 125A , 125B , 126 , 127 , 127A , 128 , 129 , 133 or 185 of the Criminal Code; or (b) a crime under section 298, 299 or 300 of the Criminal Code in relation to a crime specified in a section referred to in paragraph (a) ; or (c) an offence under section 35(3) of the Police Offences Act 1935 ; spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003 , with that person; surrogate child, in relation to another person, means a person – (a) who is a child of the other person by virtue of the operation of section 26(1) of the Surrogacy Act 2012 or a law, of another State or a Territory or a foreign country, that corresponds to that Act; and (b) who has not ceased to be a child of the other person under that Act or law; surrogate parent, in relation to another person, means a person – (a) who is a parent of the other person by virtue of the operation of section 26(1) of the Surrogacy Act 2012 or a law, of another State or a Territory or a foreign country, that corresponds to that Act; and (b) who has not ceased to be a parent of the other person under that Act or law; Tasmanian court means – (a) the Supreme Court; or (b) any other court created by Parliament – (including such a court exercising federal jurisdiction) and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence; tendency evidence means evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection; tendency rule means the rule referred to in section 97(1) ; traditional laws and customs of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group; witness includes a witness referred to in subsections (7) and (8) . (2) A reference in this Act to examination in chief of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re-examination. (3) A reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence. (4) A reference in this Act to re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning (other than further examination in chief with the leave of the court) conducted after the cross-examination of the witness by another party. (5) If a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to the questioning of the witness by that party before the witness is questioned by another party. (6) For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country. (7) A reference in this Act to a witness includes a reference to a party giving evidence. (8) A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence. (9) A reference in subsections (7) and (8) to a party includes a defendant in a criminal proceeding. (10) A reference in this Act to a document includes a reference to – (a) any part of the document; or (b) any copy, reproduction or duplicate of the document or of any part of the document; or (c) any part of such a copy, reproduction or duplicate. (11) A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place. (12) A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia. (13) A reference in this Act to a child of a person includes a reference to – (a) an adopted child, surrogate child or ex-nuptial child of the person; or (b) a child living with a person as if the child were a member of the person's family. (14) A reference in this Act to a parent of a person includes a reference to – (a) an adoptive parent, or surrogate parent, of the person; or (b) if the person is an ex-nuptial child, the person's natural father; or (c) the person with whom a child is living as if the child were a member of the person's family. Note: The provisions in subsections (2) to (14) are contained in the Dictionary in the Evidence Act 1995 of the Commonwealth.