Category Archives: EVIDENCE

EVIDENCE

Which Evidence the Court permits or requires to be made before it in a Suit or Proceeding [ Relevant evidence]

  1. Permissible hearsay Evidence [s 1to 16]

HERESAY EVIDENCE-Hearsay evidence is that which attempts to prove the event In question, not by the assertion of one who has personal knowledge of it, but by transmission of his extra judicial assertion through the medium of witness who knows not of the event, but of the former’s narration in respect to it.(STEFEN`S DIGEST)

2. DIRECT EVIDENCE -Direct evidence is term commonly used to denote testimony of witness asserting that he perceived with his senses the fact which is sought to be proved, as the execution of an instrument, the beating or killing of one person by another, the presence of person at given place and time, etc. In this sense it is distinguished from circumstantial evidence, which seeks to prove an act or matter, by testimony, not that any person directly perceived the act or matter, but that he perceived other things which would render the main fact or matter probable. The expression, “Oral evidence must be direct,” in Art. 62, Infra, is used in another sense, namely, that the person testify ing must speak of his own knowledge as to the matters about which he gives testimony, and not recite the hearsay statements of others.(STEFEN`S DIGEST)

3. Admission and Confession evidence [ s 17 to 30 ]

4. Statement by person not coming before the Court of Law [s 32 to 33]

5. Statements made through Documents [S 34 to 39 ]

6. Evidence in previous Judgments [ s 40 to 44 ]

7. Opinion Evidence[ expert] [s 45 to 50

8. Character Evidence  [s 52 55 ] 

A court shall Permit only  Relevant Fact or Facts in Issue forming the above eight items

“Relevant”.— One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.
“Facts in issue”— The expression “facts in issue” means and includes—
any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Explanation.— Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.

 

EVIDENCE

Handy explanation of Indian Evidence Act 1872

EVIDENCE MAY BE GIVEN OF FACTS IN ISSUE AND RELEVANT FACTS —

Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

Explanation — This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.

Illustrations
(a)A is tried for the murder of B by beating him with a club with the intention of causing his death.
At A’s trial the following facts are in issue:—
A’s beating B with the club;
A’s causing B’s death by such beating;
A’s intention to cause B’s death.
(b)A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.

EVIDENCE

What is Evidence and what is not

S 3 . EVIDENCE”.

“ Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court,
such documents are called documentary evidence.

COMPETENT EVIDENCE-This term is used mostly as synonym of “admissible.” By competent evidence is meant that which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case.[The word “incompetent” is frequently used in stating objections to evidence and has meaning practically identical with “Inadmissible” and “irrelevant].(STEFEN`S DIGEST)

EVIDENCE VS PROOF-There is an obvious difference between the words “evidence” and “proof.” The former, in legal acceptation, includes the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. The latter is the effect or result of evidence.(STEFEN`S DIGEST)

Anecdote   Exceptions to the above rule [s 6 to 55 ]

Anecdote Material evidence [ Material exhibits] are not included because it need to be identified by a competent witness u/s 9. Sun gives light is a self evident fact but a dagger used in Murder is ned to be proved by credible Identification and corroboration direct witness along with opinion evidence u/ss 45 to 51.

Anecdote Circumstantial evidence is evidence per se within the exception Rules under  Exceptions to the above rule [s 6 to 55 ]

EVIDENCE, Law Question Papers

OBJECTIVE SAMPLE QUESTIONS ON THE INDIAN EVIDENCE ACT [1ST SET ]

  1. Indian Evidence Act was drafted by
    (a) Lord Macaulay
    (b) Sir James F. Stephen
    (c) Huxley
    (d) Sir Henry Summer Maine.
  2. The law of evidence consists of
    (a) ordinary rules of reasoning
    (b) legal rules of evidence
    (c) rules of logic
    (d) all the above.
  3. Relevancy and admissibility under the
    Indian Evidence Act are
    (a) synonymous
    (b) co-extensive
    (c) neither synonymous nor co-extensive
    (d) synonymous & co-extensive both.
  4. ‘Self-regarding’ statements
    (a) can be self-serving statements
    (b) can be self-harming statements
    (c) can be self-serving or self-harming
    (d) none of the above.
  5. What is correct as regards the admissibility of self-regarding statements
    (a) self-harming statement is admissible but a self-serving statement is not generally admissible
    (b) self-serving statement is admissible but a self-harming statement is not generally admissible
    (c) self-serving and self-harming statements both are generally admissible
    (d) self-serving and self-harming statements both are generally inadmissible.
  6. Under the law of evidence, as a general rule
    (a) opinion on a matter of fact is relevant but not on a matter of law
    (b) opinion on a matter of law is relevant but not on a matter of fact
    (c) opinion on a matter of fact and law both are relevant
    (d) opinion whether on a matter of fact or law, is irrelevant.
  7. Indian Evidence Act applies to
    (a) proceedings before tribunals
    (b) proceedings before the arbitrator
    (c) judicial proceedings in courts
    (d) all the above.
  8. Law of evidence is
    (a) lex tallienis
    (b) lex fori
    (c) lex loci solutionis
    (d) lex situs.
  9. Law of evidence is
    (a) a substantive law
    (b) an adjective law
    (c) both (a) & (b)
    (d) neither (a) nor (b).
  10. Facts can be
    (a) physical facts
    (b) psychological facts
    (c) physical as well as psychological facts
    (d) only physical facts & not psychological facts.
  11. Under the Evidence Act, fact means
    (a) factum probandum
    (b) factum probans
    (c) both factum probandum and factum probans
    (d) none of the above.
  12. Fact in issue means
    (a) fact, existence or non-existence of which is admitted by the parties
    (b) fact, existence or non-existence of which is disputed by the parties
    (c) fact existence or non-existence of which is not disputed by the parties
    (d) all the above.
  13. Evidence under the Indian Evidence Act means & includes
    (a) ocular evidence
    (b) documentary evidence
    (c) ocular and documentary evidence both
    (d) ocular evidence based on documents only.
  14. Propositions under Evidence Act are
    I. Affidavit is an evidence.
    II. Everything produced before the court for inspection is evidence.
    III. Anything of which judicial notice can be taken is evidence.
    IV. Written statement of an accused is evidence. Which of the following is true in respect of the aforesaid propositions
    (a) I, II, III & IV all are correct
    (b) I, II & III are correct but IV is incorrect
    (c) I, II & IV are correct but III is incorrect
    (d) I, II & IV are incorrect but III is correct
    (e) I & II are correct but III & IV are incorrect
    (f) I is incorrect but II, III & IV are correct.
  15. Proof of a fact depends on
    (a) accuracy of the statement and not upon the probability of its existence
    (b) not upon the accuracy of the statement but upon the probability of its existence
    (c) artificial probative value assigned to a fact
    (d) rigid mathematical demonstration.
  16. Standard of proof in
    (a) civil and criminal cases is the same
    (b) criminal cases is much more higher than in civil cases
    (c) criminal case is lower than in civil cases
    (d) either (a) or (c) are correct
  17. Presumptions under the law of evidence are
    (a) presumption of facts
    (b) presumptions of law
    (c) both (a) & (b)
    (d) only (b) & not (a).
  18. Propositions under Evidence Act are
    I. Presumptions of facts are always rebuttable
    II. Presumption of facts can be either rebuttable or irrebuttable
    III. Presumption of law are always irrebuttable
    IV. Presumption of law can be either rebuttable or irrebuttable.
    Which is true of the aforesaid propositions
    (a) I & III are correct but II & IV are incorrect
    (b) I & IV are correct but II & III are incorrect
    (c) II & III are correct but I & IV are incorrect.
    (d) II & IV are correct but I & III are incorrect.
  19. Under the law of evidence, the relevant fact
    (a) must be legally relevant
    (b) must be logically relevant
    (c) must be legally & logically relevant
    (d) must be legally & logically relevant and admissible.
  20. Relevancy is
    (a) question of law and can be raised at any time
    (b) question of law but can be raised at the first opportunity
    (c) question of law which can be waived
    (d) question of procedure which can be waived.
  21. Question of mode of proof is
    (a) a question of law which can be raised at any time
    (b) a question of procedure but has to be raised at the first opportunity and stands waived if not raised at the first opportunity
    (c) a question of procedure & can be raised at any time
    (d) a mixed question of law & fact.
  22. Which of the following documents are not admissible in evidence
    (a) documents improperly procured
    (b) documents procured by illegal means
    (c) both (a) & (b)
    (d) neither (a) nor (b).
  23. The facts which form part of the same transaction are relevant
    (a) under section 5 of Evidence Act
    (b) under section 6 of Evidence Act
    (c) under section 7 of Evidence Act
    (d) under section 8 of Evidence Act.
  24. A fact forming part of the same transaction is relevant under section 6 of Evidence Act
    (a) if it is in issue and have occurred at the same time & place
    (b) if it is in issue and may have occurred at different times & places
    (c) though not in issue and may have occurred at the same time & place or at different times & places
    (d) though not in issue, must have occurred at the same time & place.
  25. Several classes of facts, which are connected with the transaction(s) in a particular mode, are relevant
    (a) under section 6 of Evidence Act
    (b) under section 7 of Evidence Act
    (c) under section 8 of Evidence Act
    (d) under section 9 of Evidence Act.
  26. Motives of preparation and conduct are I relevant
    (a) under section 6 of Evidence Act
    (b) under section 7 of Evidence Act
    (c) under section 8 of Evidence Act
    (d) under section 9 of Evidence Act.
  27. Under section 8 of Evidence Act
    (a) motive is relevant
    (b) preparation is relevant
    (c) conduct is relevant
    (d) all the above.
  28. For conduct to be relevant under section 8 of Evidence Act, it
    (a) must be previous
    (b) must be subsequent
    (c) may be either previous or subsequent
    (d) only subsequent & not previous.
  29. Facts which are necessary to explain or introduce relevant facts of place, name, date, relationship & identity of parties are relevant
    (a) under section 8 of Evidence Act
    (b) under section 9 of Evidence Act
    (c) under section 10 of Evidence Act
    (d) under section 11 of Evidence Act.
  30. Under section 9 of Evidence Act
    (a) the identification parades of suspects are relevant
    (b) the identification parades of chattels are relevant
    (c) both (a) & (b) are relevant
    (d) only (a) & not (b) is relevant.
  31. Identification of a suspect by photo is
    (a) admissible in evidence
    (b) not admissible in evidence
    (c) section 9 of Evidence Act excludes identification by photo
    (d) section 8 of Evidence Act excludes identification by photo.
  32. Things said or done by a conspirator in reference to the common design is relevant
    (a) under section 12 of Evidence Act
    (b) under section 6 of Evidence Act
    (c) under section 10 of Evidence Act
    (d) under section 8 of Evidence Act.
  33. A confession made by a conspirator involving other members is relevant against the co-conspirator jointly tried with him and is admissible
    (a) under section 8 of Evidence Act
    (b) under section 10 of Evidence Act
    (c) under section 30 of Evidence Act
    (d) both (b) & (c).
  34. Alibi is governed by
    (a) section 6 of Evidence Act
    (b) section 8 of Evidence Act
    (c) section 15 of Evidence Act
    (d) section 11 of Evidence Act.
  35. Transaction and instances relating to a right or custom are relevant
    (a) under section 6 of Evidence Act
    (b) under section 8 of Evidence Act
    (c) under section 10 of Evidence Act
    (d) under section 13 of Evidence Act.
  36. Section 13 of Evidence Act applies to
    (a) corporal rights
    (b) incorporal rights
    (c) both corporal and incorporal rights
    (d) neither (a) nor (b).
  37. Section 13 of Evidence Act
    (a) is confined to public rights & does not cover private rights
    (b) is not confined to public rights and covers private rights also
    (c) is confined to private rights and does not cover public rights
    (d) either (a) or (c) is correct.
  38. Mode of proof of a custom is contained in
    (a) section 32(4) of Evidence Act
    (b) section 32(7) of Evidence Act
    (c) section 48 of Evidence Act
    (d) all the above.
  39. Section 14 of Evidence Act makes relevant the facts which show the existence of
    (a) any state of mind
    (b) any state of body or bodily feeling
    (c) either state of mind or of body or bodily feeling
    (d) a particular state of mind and a state of body.
  40. Under section 14 of Evidence Act – Explanation I
    (a) evidence of general disposition, habit or tendencies is inadmissible
    (b) evidence having a distinct and immediate reference to the particular matter in question is admissible
    (c) both (a) & (b) are correct
    (d) both (a) & (b) are incorrect.
  41. Previous conviction of a person is relevant under
    (a) explanation I to section 14 of Evidence Act
    (b) explanation II to section 14 of Evidence Act
    (c) explanation III to section 14 of Evidence Act
    (d) explanation IV to section 14 of Evidence Act.
    Multiple Choice Questions for Judicial Service Examination
  42. Under section 15 of Evidence Act, facts showing series of similar occurrences, involving the same person are relevant
    (a) when it is uncertain whether the act is intentional or accidental
    (b) when it is certain that the act is with guilty knowledge
    (c) when it is certain that the act is done innocently
    (d) either (b) or (c).
  43. Admission has been defined as a statement made by a party or any person connected with him, suggesting any inference as to a fact in issue or relevant fact under certain circumstances, under
    (a) section 16 of Evidence Act
    (b) section 17 of Evidence Act
    (c) section 18 of Evidence Act
    (d) section 19 of Evidence Act.
  44. Admissions
    (a) must be examined as a whole and not in parts
    (b) can be examined in parts
    (c) can be examined as a whole or in parts
    (d) both (b) & (c) are correct.
  45. Admissions bind the maker
    (a) in so far as it relates to facts
    (b) in so far as it relates to question of law
    (c) both on questions of facts & of law
    (d) neither (a) nor (b).
  46. Admissions
    (a) must be in writing
    (b) must be oral
    (c) either oral or in writing
    (d) only in writing & not oral.
  47. Admission to be relevant
    (a) must be made to the party concerned & not to a stranger
    (b) must be made to a stranger
    (c) it is immaterial as to whom admission is made and an admission made to a stranger is relevant
    (d) it is immaterial to whom the admission is made but must be made to someone intimately connected & not a stranger.
  48. Propositions under Evidence Act are
    I. Statement is a genus, admission is a species
    & confession is a sub species.
    II. Statement & admission are species & confession is a sub species.
    III. Statement & admission are genus & confession is a species.
    In this context which of the following is correct
    (a) I is correct, II & III are incorrect
    (b) I & II are correct & III is incorrect
    (c) II & III are correct & I is incorrect
    (d) III is correct & I & II are incorrect.
  49. Admission can be
    (a) formal only
    (b) informal only
    (c) either formal or informal
    (d) only formal & not informal.
  50. Admissions
    (a) are conclusive proof of the matters admitted
    (b) are not conclusive proof of the matters admitted but operate as estoppel
    (c) are conclusive proof of the matter and also operate as estoppel
    (d) both (a) & (c) are correct.
  51. Persons who can make admissions are mentioned in
    (a) section 17 of Evidence Act
    (b) section 20 of Evidence Act
    (c) section 19 of Evidence Act
    (d) section 18 of Evidence Act.
  52. Admissions by agents are
    (a) admissible in civil proceedings under all circumstances
    (b) admissible in civil proceedings only if the agent has the authority to make admissions
    (c) never admissible in criminal proceedings
    (d) both (b) & (c).
  53. Admissions made by a party are evidence against
    (a) privies in blood
    (b) privies in law
    (c) privies in estate
    (d) all the above.
  54. Which of the following admission is no evidence
    (a) an admission by one of the several defendants in a suit against another defendant
    (b) an admission by a guardian ad litem against a minor
    (c) an admission by one of the partners of a firm against the firm or other partners
    (d) only (a) & (b).
  55. When the liability of a person who is one of the parties to the suit depends upon the liability of a stranger to the suit, then an admission by the stranger in respect of his liability shall be an admission on the part of that person who is a party to the suit. It has been so provided
    (a) under section 21 of Evidence Act
    (b) under section 20 of Evidence Act
    (c) under section 19 of Evidence Act
    (d) under section 17 of Evidence Act.
  56. In a reference made over a disputed matter to a third person, the declaration so made by that person shall be an evidence against the party making a reference, by virtue of
    (a) section 17 of Evidence Act
    (b) section 19 of Evidence Act
    (c) section 20 of Evidence Act
    (d) section 21 of Evidence Act.
  57. Communication made ‘without prejudice’ are protected
    (a) under section 22 of Evidence Act
    (b) under section 23 of Evidence Act
    (c) under section 24 of Evidence Act
    (d) under section 21 of Evidence Act.
  58. Confession caused by inducement, threat or promise is contained in
    (a) section 24 of Evidence Act
    (b) section 25 of Evidence Act
    (c) section 26 of Evidence Act
    (d) section 27 of Evidence Act.
  59. Section 24 of Evidence Act applies
    (a) when the inducement, threat or promise comes from a person in authority
    (b) when the inducement is of a temporal kind
    (c) when the inducement is spiritual or religious
    (d) only (a) & (b) are correct.
  60. A confession made to a police officer is inadmissible under
    (a) , section 24 of Evidence Act
    (b) section 25 of Evidence Act
    (c) section 26 of Evidence Act
    (d) section 27 of Evidence Act.
  61. A confession to be inadmissible under section 25 of Evidence Act
    (a) must relate to the same crime for which he is charged
    (b) must relate to another crime
    (c) may relate to the same crime or another crime
    (d) only (a) is correct and (b) is incorrect.
  62. Which of the following is not given by section 25 of Evidence Act
    (a) confessions made to custom officers
    (b) confession made to a member of Railway Protection Force
    (c) confession made to an officer under FERA
    (d) all the above.
  63. A retracted confession
    (a) can be made solely the basis of conviction
    (b) cannot be made solely the basis of conviction under any circumstances
    (c) can not be made solely the basis of conviction unless the same is corroborated
    (d) both (a) & (c) are incorrect.
  64. A confession made by a person while in police custody is inadmissible as per
    (a) section 25 of Evidence Act
    (b) section 26 of Evidence Act
    (c) section 27 of Evidence Act
    (d) section 30 of Evidence Act.

  65. A confession made while in police custody is admissible under section 26 of Evidence Act
    (a) if made in the presence of a doctor
    (b) if made in the presence of a captain of a vessel
    (c) if made in the presence of a Magistrate
    (d) all the above.

  66. Section 27 control
    (a) section 24 of Evidence Act
    (b) section 25 of Evidence Act
    (c) section 26 of Evidence Act
    (d) all the above.
  67. Section 27 applies to
    (a) discovery of some fact which the police had not previously learnt from other sources and was first derived from the information given by the accused
    (b) discovery of some fact which the police had previously learnt from other sources
    (c) discovery of some fact which the police had previously learnt from other sources and the accused has also given information regarding the same
    (d) all the above.
  68. Under section 27 of Evidence Act, ‘discovery of fact’ includes
    (a) the object found
    (b) the place from where it is produced
    (c) both (a) & (b)
    (d) neither (a) nor (b).
  69. Section 27 of Evidence Act applies
    (a) when the person giving information is an accused but not in police custody
    (b) when the person giving information is an accused and is in police custody
    (c) when the person is in police custody but not an accused
    (d) when the person is neither in police custody nor an accused.
  70. Under section 27 of Evidence Act
    (a) the whole statement is admissible
    (b) only that portion which distinctly relates to the discovery is admissible
    (c) both are admissible depending on the facts & circumstances of the case
    (d) only (a) & not (b).
  71. Facts discovered in consequences of a joint information
    (a) are not admissible and can not be used against any of the accused person
    (b) are admissible and can be used against any one of the accused person
    (c) are admissible and can be used against all the accused persons
    (d) both (a) & (c) are correct.
  72. Confession of an accused is admissible against the other co-accused
    (a) under section 28 of Evidence Act
    (b) under section 29 of Evidence Act
    (c) under section 30 of Evidence Act
    (d) under section 31 of Evidence Act.
  73. Confession of one accused is admissible against co-accused
    (a) if they are tried jointly for the same offences
    (b) if they are tried jointly for different offences
    (c) if they are tried for the same offences but not jointly
    (d) if they are tried for different offences and not jointly.
  74. Confession of a co-accused, not required to be on oath and cannot be tested by cross- examination
    I. is no evidence within the meaning of section 3 of Evidence Act and cannot be the foundation of a conviction
    II. the only limited use which can be made of a confession of a co-accused is by way of furnishing an additional reason for believing such other evidences as exists
    III. it is a very weak type of evidence and is much weaker even than the evidence of an approver.
    In the aforesaid propositions
    (a) all I, II & III are correct
    (b) only I & III are correct
    (c) only I & II are correct
    (d) only II & III are correct.
  75. ‘Necessity rule’ as to the admissibility of evidence is contained in
    (a) section 31 of Evidence Act
    (b) section 32 of Evidence Act
    (c) section 60 of Evidence Act
    (d) section 61 of Evidence Act.
  76. Necessity rule as to the admissibility of evidence is applicable, when the maker of a statement
    (a) is dead or has become incapable of giving evidence
    (b) is a person who can be found but his attendance can not be procured without unreasonable delay or expenses
    (c) is a person who can not be found
    (d) all the above.
  77. Under section 32 of Evidence Act, a statement of a person who is dead, to be admissible
    (a) must relate to the cause of his own death
    (b) may relate to the cause of someone else’ death
    (c) may relate to the cause of his own death or someone else’ death
    (d) both (b) & (c) are correct.
  78. The person whose statement is admitted under section 32 of Evidence Act
    (a) must be competent to testify
    (b) need not be competent to testify
    (c) may or may not be competent to testify
    (d) only (a) is correct and (b) & (c) are incorrect.
  79. A dying declaration is admissible
    (a) only in criminal proceedings
    (b) only in civil proceedings
    (c) in civil as well as criminal proceedings both
    (d) in criminal proceedings alone & not in civil proceedings.
  80. A dying declaration
    (a) can form the sole basis of conviction without any corroboration by independent evidence
    (b) can form the basis of conviction only on corroboration by independent witness
    (c) cannot form the sole basis of conviction unless corroborated by independent witness
    (d) only (b) & (c) are correct.

  81. A dying declaration to be admissible
    (a) must be made before a Magistrate
    (b) must be made before the police officer
    (c) may be made before a doctor or a private person
    (d) may be made either before a magistrate or a police officer or a doctor or a private person.

  82. Declaration in course of business are admissible
    (a) under section 32(1) of Evidence Act
    (b) under section 32(2) of Evidence Act
    (c) under section 32(4) of Evidence Act
    (d) under section 32(7) of Evidence Act.

  83. Declaration as to custom are admissible
    (a) under section 32(1) of Evidence Act
    (b) under section 32(2) of Evidence Act
    (c) under section 32(4) of Evidence Act
    (d) under section 32(7) of Evidence Act.
  84. Under section 32(4) of Evidence Act, the declaration
    (a) as to public rights & customs are admissible
    (b) as to private rights & customs are admissible
    (c) as to both public and private rights and customs are admissible
    (d) only as to customs are admissible.
  85. Opinions of experts are relevant
    (a) under section 45 of Evidence Act
    (b) under section 46 of Evidence Act
    (c) under section 47 of Evidence Act
    (d) under section 48 of Evidence Act.

  86. Under section 45 of Evidence Act, the opinion of expert can be for
    (a) identity of hand writing
    (b) identity of finger impression
    (c) both (a) & (b)
    (d) neither (a) nor (b).

  87. Under section 45 of Evidence Act the opinion of expert can be on the question of
    (a) Indian law
    (b) Foreign law
    (c) both (a) & (b)
    (d) only (a) & not (b).

  88. Opinion of an expert under section 45 of Evidence Act
    (a) is a conclusive proof
    (b) is not a conclusive proof
    (c) is supportive & corroborative in nature
    (d) either (a) or (c).
  89. A disputed handwriting can be proved
    (a) by calling an expert
    (b) by examining a person acquainted with the handwriting of the writer of the questioned document
    (c) by comparison of the two-admitted & disputed handwritings
    (d) all the above.
  90. The res inter alia acta is receivable
    (a) under section 45 of Evidence Act
    (b) under section 46 of Evidence Act
    (c) under section 47 of Evidence Act
    (d) under section 48 of Evidence Act.
  91. Entries in the books of accounts regularly kept in the course of business are admissible under section 34 of Evidence Act
    (a) if they by themselves create a liability
    (b) if they by themselves do not create a liability
    (c) irrespective of whether they themselves create a liability or not
    (d) either (a) or (b).
  92. When the court has to ascertain the relationship between one person and another, the opinion of any person having special means of knowledge and expressed by conduct is admissible
    (a) under section 51 of Evidence Act
    (b) under section 50 of Evidence Act
    (c) under section 52 of Evidence Act
    (d) under section 49 of Evidence Act.
  93. The relationship in section 50 of Evidence Act means
    (a) relationship by blood only
    (b) relationship by blood or marriage
    (c) relationship by blood or marriage or adoption
    (d) only (a) and not (b) & (c).
  94. Opinion as to relationship of marriage under section 50 of CPC
    (a) is admissible in cases of offences against marriage
    (b) is admissible in proceedings under Indian Divorce Act
    (c) is admissible both in (a) & (b)
    (d) is neither admissible in cases of offences against marriage nor in proceedings under Indian Divorce Act
  95. Propositions under Evidence Act are
    I. In civil cases, character evidence is inadmissible unless the character of a party is a fact in issue.
    II. In criminal cases, the evidence of good character is admissible generally.
    III. In criminal proceedings, evidence of bad character is inadmissible unless the same is a fact in issue.
    IV. In criminal proceedings evidence of bad character is admissible when evidence of good character has been given. In relation to the above propositions which of the following is correct statement
    (a) all the four (I, II, III & IV) are correct
    (b) I, II & III are correct but IV is incorrect
    (c) I & II are correct but III & IV are incorrect
    (d) I & III are correct but II & IV are incorrect
    (e) I, II & IV are correct but III is incorrect
    (f) II, III & IV are correct but I is incorrect.
  96. Facts of which the judicial notice is to be taken are stated in
    section 56 of Evidence Act
    section 57 of Evidence Act
    section 58 of Evidence Act
    section 55 of Evidence Act.
  97. List of facts of which the judicial notice has to be taken under section 57 of Evidence Act
    (a) is exhaustive
    (b) is illustrative only
    (c) is both (a) & (b)
    (d) is neither (a) nor (b).
  98. Facts which need not be proved by the parties include
    (a) facts of which judicial notice has to be taken
    (b) facts which have been admitted by the parties at or before the hearing
    (c) both (a) & (b)
    (d) neither (a) nor (b).
  99. The court may in its discretion call for proving the facts
    (a) of which judicial notice has to be taken
    (b) which have been admitted otherwise than such admissions
    (c) both (a) & (b)
    (d) neither (a) nor (b).
  100. Oral evidence under section 60 of Evidence Act may be
    (a) direct only
    (b) hearsay
    (c) both (a) & (b)
    (d) either (a) or (b).

 

EVIDENCE

 Cross-Examination under Indian Evidence Act

 Cross-Examination

a. Cross-examination must be related to relevant facts but unlike re-examination, it need not be confined to facts deposed to in the preceding examination (Section 138). Further it differs from both of them in as much as leading questions can be asked (Sections 142 /143).

b. No cross-examination can be allowed of a witness who is “summoned to produce a document (Section 139)[ but it is competent of a witness to character (Section 140)”.

c. A witness may be cross examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question without such writing being shown to him or being proved (Section 145).

d. The range of cross-examination is unlimited, the only circumscribing limits being that it must relate to relevant facts (Section 138).

e. By sections 146 to 150 the legislature has tried to give very wide powers to the cross examiner to help him in finding out the truth. In oral depositions laid out before the court. In cross-examination, a witness may be asked question.
1) to test his veracity;
2) to discover who he is and what is his position in life;
3) to shake his credit by injuring his character, although his answer might criminate him or expose him to penalty or forfeiture (Section 146).

f. All questions or inquires which are indecent or scandalous, unless they relate to facts in issue, are to be avoided (Section 151);
And all questions which are calculated to insult or annoy or couched in a needlessly offensive form (Section 152).

g. Cross-Examination is in almost all cases undertaken by the adverse party; but the court may permit a party to cross-examine his own witness if he proves to be a hostile witness (Section 153).

h. In Warrant cases tried by magistrates, the accused person can after the charge has been framed and he has given his plea, re-call and cross-examine any witness for the prosecution (Section 246 Cr. P.C.).

 

Exemption from cross-examination

Dying declaration

Cross-Examination of person called to produce a document (Section 139): A person summoned to produce a document does not become a witness and cannot be cross-examined unless he is called as a witness.

Examination by Court: It is not the province of the court to examine the witnesses, unless the pleaders on either side have omitted to put some material question or questions.

Leading question (Section 143): Leading questions may be asked in cross-examination.

Cross-Examination as to previous statements in writing (Section 145)

Protection of Witness :-Section 148-52 are intended to protect a witness against improper cross-examination.

Exclusion of evidence to contradict answers to questions testing veracity (Section 153): When any witness answers any question which is relevant in so far as it shakes his credit, no evidence can be given to contradict him but if he answers falsely he may be charged with giving false evidence.

A hostile witness can be cross-examined u/s 154

EVIDENCE

Statement of a child witness

CHILD WITNESS:

Indian Law Encyclopedia

In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54, Supreme Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise. The Court further held as under:

… It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate….

 In Mangoo and Anr. v. State of Madhya Pradesh, AIR 1995 SC 959, this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

 In Panchhi and Ors. v. State of U.P., AIR 1998 SC 2726, this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that “the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.

In Nivrutti Pandurang Kokate and Ors. v. State of Maharashtra, AIR 2008 SC 1460, this Court dealing with the child witness has observed as under:

The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.

The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross- examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh and Ors. v. State of Maharashtra, AIR 2009 SC 2292).

 In State of U.P. v. Krishna Master and Ors., AIR 2010 SC 3071, this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.

 Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide: Gagan Kanojia and Anr. v. State of Punjab (2006) 13 SCC 516.

In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.

 

EVIDENCE

Admissibility of a document is one thing and its probative value quite another-these two aspects cannot be combined.

Under construction

Indian Law Encyclopedia

In State of Bihar and Ors. v. Radha Krishna Singh and Ors., AIR 1983 SC 684, this Court dealt with the issue of prohibitive value of the contents of an admitted document and held as under:

Admissibility of a document is one thing and its probative value quite another-these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight of its probative value may be nil….

(See also: Madan Mohan Singh v. Rajni Kant, AIR 2010 SC 2933)
EVIDENCE

Whether adverse inference could be drawn against the accused merely on the basis of recoveries made on their disclosure statements.

Indian Law Encyclopedia

In Gulab Chand v. State of M.P., AIR 1995 SC 1598, Supreme Court upheld the conviction for committing dacoity on the basis of recovery of ornaments of the deceased from the possession of the person accused of robbery and murder immediately after the occurrence.

7.2. In Geejaganda Somaiah v. State of Karnataka, AIR 2007 SC 1355, this Court relied on the judgment in Gulab Chand (supra) and observed that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced.

It has been indicated by this Court in Sanwat Khan v. State of Rajasthan, AIR 1956 SC 54, that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances.

In Tulsiram Kanu v. State, AIR 1954 SC 1, this Court has indicated that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act 1872 has to be drawn under the ‘important time factor’. If the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if a long period has expired in the interval, the presumption cannot be drawn having regard to the circumstances of the case.

 In Earabhadrappa v. State of Karnataka AIR 1983 SC 446, this Court held that the nature of the presumption under Illustration (a) of Section 114 of the Evidence Act must depend upon the nature of evidence adduced. No fixed time-limit can be laid down to determine whether possession is recent or otherwise. Each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according “as the stolen article is or is not calculated to pass readily from hand to hand”. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed could not be said to be too long particularly when the Appellant had been absconding during that period.

 Following such a reasoning, in Sanjay @ Kaka etc. etc. v. The State (NCT of Delhi), AIR 2001 SC 979, this Court upheld the conviction by the trial court since disclosure statements were made by the accused persons on the next day of the commission of the offence and the property of the deceased was recovered at their instance from the places where they had kept such properties, on the same day. The Court found that the trial Court was justified in holding that the disclosure statements of the accused persons and huge recoveries from them at their instance by itself was a sufficient circumstance on the very next day of the incident which clearly went to show that the accused persons had joined hands to commit the offence of robbery. Therefore, recent and unexplained possession of stolen properties will be taken to be presumptive evidence of the charge of murder as well.

 In Ronny Alias Ronald James Alwaris and Ors. v. State of Maharashtra, AIR 1998 SC 1251, this Court held that apropos the recovery of articles belonging to the family of the deceased from the possession of the Appellants soon after the robbery and the murder of the deceased remained unexplained by the accused, and so the presumption under Illustration (a) of Section 114 of the Evidence Act would be attracted:

It needs no discussion to conclude that the murder and the robbery of the articles were found to be part of the same transaction. The irresistible conclusion would therefore, be that the Appellants and no one else had committed the three murders and the robbery.

(See also: Baijur v. State of Madhya Pradesh, AIR 1978 SC 522; and Mukund alias Kundu Mishra and Anr. v. State of Madhya Pradesh, AIR 1997 SC 2622).

Thus, the law on this issue can be summarized to the effect that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. It also depends on the nature of the property so recovered, whether it was likely to pass readily from hand to hand. Suspicion should not take the place of proof.

 

EVIDENCE

Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions.

Indian Law Encyclopedia

It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution’s case, may not prompt the Court to reject the evidence in its entirety. “Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions.” Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. (Vide: Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191.

In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. “Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.” Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. “Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions.” The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution’s case, render the testimony of the witness liable to be discredited. (Vide: State Represented by Inspector of Police v. Saravanan and Anr., AIR 2009 SC 152; Arumugam v. State AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; Dr. Sunil Kumar Sambhudayal Gupta and Ors. v. State of Maharashtra, JT 2010 (12) SC 287; Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191; State of U.P. v. Naresh and Ors., (2011) 4 SCC 324; and Brahm Swaroop and Anr. v. State of U.P., AIR 2011 SC 280).

Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide: State of Rajasthan v. Rajendra Singh (2009) 11 SCC 106.

 

EVIDENCE

The evidence of the stamped (injured) witness

Indian Law Encyclopedia

The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. “Convincing evidence is required to discredit an injured witness”. Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide: Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259; Kailas and Ors. v. State of Maharashtra (2011) 1 SCC 793; Durbal v. State of Uttar Pradesh, (2011) 2 SCC 676; and State of U.P. v. Naresh and Ors., (2011) 4 SCC 324.

EVIDENCE

Evidence Act 1977 [State of Queensland]

Evidence Act 1977

INDEX

Status information

Long title

Part 1 Preliminary

1 Short title

2 Act binds Crown

2A Notes in text

3 Definitions

4 Meaning of copy of document etc.

5 Meaning of document purporting to be of certain character etc.

Part 2 Witnesses

Division 1 Who may testify

6 Witnesses interested or convicted of offence

7 Parties, their wives and husbands as witnesses

8 Witnesses in a criminal proceeding

Division 1A Competency of witnesses and capacity to be sworn

9 Presumption as to competency

9A Competency to give evidence

9B Competency to give sworn evidence

9C Expert evidence about witness’s ability to give evidence

9D Evidence admitted under s 9A

Division 1B Special provisions for child witnesses

9E Principles for dealing with a child witness

Division 2 Privileges and obligations of witnesses

10 Privilege against self-incrimination

11 [Repealed]

12 Admissibility of evidence as to access by husband or wife

13 Compellability of parties and witnesses as to evidence of adultery

14 Abolition of certain privileges

Division 2A Sexual assault counselling privilege

Subdivision 1 Preliminary

14A Meaning of protected counselling communication

14B Other definitions for division

Subdivision 2 Committal and bail proceedings

14C Application of subdivision

14D Sexual assault counselling privilege

Subdivision 3 Other proceedings

14E Application of subdivision

14F Sexual assault counselling privilege

14G Application for leave

14H Deciding whether to grant leave

Subdivision 4 Waiver or loss of privilege

14I Waiver of privilege by counselled person

14J Loss of privilege if communication made in commission of offence

Subdivision 5 General provisions

14K Court to inform of rights

14L Standing of counsellor and counselled person

14M Deciding whether document or evidence is protected counselling communication

14N Ancillary orders

14O Application of division despite Justices Act 1886

14P Application of privilege in civil proceedings

Division 3 Examination and cross-examination of witnesses

15 Questioning a person charged in a criminal proceeding

15A Questioning of witness as to certain convictions

16 Witness may be questioned as to previous conviction

17 How far a party may discredit the party’s own witness

18 Proof of previous inconsistent statement of witness

19 Witness may be cross-examined as to written statement without being shown it

20 Cross-examination as to credit

21 Improper questions

Division 4 Evidence of special witnesses

21A Evidence of special witnesses

21AAA Exclusion of particular persons while videorecording or usable soundtrack being presented

Division 4A Evidence of affected children

Subdivision 1 Preliminary

21AA Purposes of div 4A

21AB How purposes are to be achieved

21AC Definitions for div 4A

21AD Meaning of child

Subdivision 2 Committal proceeding

21AE Application of sdiv 2

21AF Evidence-in-chief

21AG Cross-examination

21AH Limitation on cross-examination

Subdivision 3 Prerecording of affected child’s evidence

21AI Application of sdiv 3

21AJ Presentation of indictment

21AK Videorecording of affected child’s evidence

21AL Court to give directions for taking an affected child’s evidence

21AM Use of prerecorded evidence

21AN Giving of further evidence

21AO Court order that evidence not to be taken and recorded under this sdiv

Subdivision 4 Taking of affected child’s evidence using audio visual link or screen

21AP Application of sdiv 4

21AQ Audio visual links or screening arrangements must be used

21AR Court may order that s 21AQ does not apply

Subdivision 5 General

21AS Prosecutor or applicant to advise that an affected child is to give evidence

21AT Identification of persons or things by affected child

21AU Exclusion of public

21AV Affected child entitled to support

21AW Instructions to be given to jury

21AX Orders, directions and rulings concerning affected child witnesses

Division 4AA Use of soundtracks from particular videorecordings

21AXA Definition for division

21AXB Meaning of usable soundtrack

21AXC Court may make order for presentation of usable soundtrack

21AXD Use of usable soundtrack

Division 4B Dealings with, and destruction of, recordings

Subdivision 1 Preliminary

21AY Definitions for div 4B

Subdivision 2 Dealings with recordings

21AZ Approval to edit or otherwise change a recording

21AZA Court to give directions about the use or safekeeping of a recording

21AZB Unauthorised possession of, or dealing with, recording

21AZC Publishing a recording prohibited

Subdivision 3 Destruction of recordings

21AZD Relationship with other Acts

21AZE Making of practice directions authorising destruction

21AZF Court may make order about destruction

21AZG Destruction of particular digital recordings

21AZH Delegation by principal registrar

Division 5 Witness identity protection

Subdivision 1 Preliminary

21B Purposes of div 5

21C Definitions for div 5

21D Application of div 5 to lawyer of party to a proceeding

Subdivision 2 Witness identity protection certificates for operatives

21E Application of sdiv 2

21F Giving witness identity protection certificate

21G Form of witness identity protection certificate

21H Filing and notification

21I Effect of witness identity protection certificate

21J Orders to protect operative’s identity etc.

21K Disclosure of operative’s identity etc. despite certificate

21KA Directions to jury

21KB Witness identity protection certificate—cancellation

21KC Permission to give information disclosing operative’s identity etc.

21KD Disclosure offences

21KE Review of giving of witness identity protection certificate by police service

21KF Giving information about witness identity protection certificates

21KG Report about witness identity protection certificates

21KH Recognition of witness identity protection certificates under corresponding laws

Subdivision 3 General

21KI Delegation

Division 6 Cross-examination of protected witnesses

21L Application of division 6

21M Meaning of protected witness

21N No cross-examination of protected witness by person charged

21O Procedure for cross-examination of protected witness if person charged has no legal representative

21P Legal assistance for cross-examination of protected witness

21Q Satisfaction of Criminal Code , section 616

21R Jury direction

21S Orders, directions and rulings concerning protected witnesses

Part 3 Means of obtaining evidence

Division 1 Commissions, requests and orders to examine witnesses

22 Commission, request or order to examine witnesses

23 Commission or order in criminal cases

24 Power of person appointed by foreign authority to take evidence and administer oaths

Division 2 Summary procedure to obtain evidence for Queensland or other jurisdictions

25 Definitions for div 2

26 Power of Queensland court to request corresponding court in a prescribed country to take evidence for use in Queensland court

27 Power to take evidence on request from corresponding court of a prescribed country

28 Summons of witnesses

29 Examination

30 Objections

31 Depositions to be signed

32 Power of Queensland court to transmit requests to other places

33 Saving as to personal attendance

34 [Repealed]

Division 3 General procedure to obtain evidence for other jurisdictions

35 Definitions for div 3

35A Application of division to Crown

36 Application to Supreme Court to obtain evidence for civil proceedings in another jurisdiction

37 Power of Supreme Court to give effect to application to obtain evidence

38 Privilege of witnesses

39 Judicial proceedings for the purposes of the Criminal Code

40 [Repealed]

Part 3A Audio visual links and audio links

Division 1 Preliminary

39A Purposes of pt 3A

39B Application of pt 3A

39C Definitions for pt 3A

Division 2 Use of interstate audio visual links or audio links in proceedings before Queensland courts

39D Application of div 2

39E State courts may take evidence and submissions from outside State

39F Legal practitioners entitled to practise

Division 3 Use of interstate audio visual links or audio links in proceedings in participating States

39G Application of div 3

39H Recognised courts may take evidence or receive submissions from persons in Queensland

39I Powers of recognised courts

39J Orders made by recognised court

39K Enforcement of order

39L Privileges, protection and immunity of participants in proceedings before recognised court

39M Recognised court may administer oath in the State

39N Assistance to recognised court

39O Contempt of recognised court

39P Double jeopardy

Division 3A Use of audio visual links or audio links for expert witnesses

39PA Application of div 3A

39PB Expert witnesses to give evidence by audio visual link or audio link

39PC Direction to jury if expert witness gives evidence by audio visual link or audio link

Division 4 General provisions about the use of audio visual links or audio links

39Q Application of div 4

39R Queensland courts may take evidence and submissions from external location

39S Failure of the link

39T Expenses

39U External location to be considered part of Queensland court location

39V Witness outside Queensland—when compellable

39W Administration of oaths and affirmations

39X Testimony from outside Australia other than on oath

39Y Putting documents to a person at an external location

39Z Extension of rule-making power

Part 4 Judicial notice of seals, signatures and legislative enactments

41 Public Seal of the State

42 Signatures of holders of public offices etc. to be judicially noticed

42A Certain seals to be judicially noticed etc.

43 Acts and statutory instruments to be judicially noticed

43A Administrative arrangements to be judicially noticed

Part 5 Proof of documents and other matters

Division 1 Proof of official and judicial documents and matters

44 Proof by purported certificate, document etc.

45 Proof of gazette

46 Proof regarding government printer, parliamentary counsel and Legislative Assembly

46A Presumption of accuracy of official copy of Queensland legislation

46B Court or tribunal may inform itself about Act or statutory instrument

47 Proof of Legislative Assembly’s proceedings or legislative material

48 Proof of particular instruments

49 Proof of standard rules, codes and specifications

50 Proof of act done by Governor or Minister

51 Proof of public documents

52 Proof of registers of British vessels etc.

53 Proof of judicial proceedings

54 Proof of identity of a person convicted

55 Proof of incorporation or registration of company in Queensland

55A Proof of disaster situation under Disaster Management Act 2003

56 Proof of unallocated State land grants

57 Proof of lease or licence

58 Proof of letters patent

58A Proof of document under Royal Sign Manual

Division 2 Proof of certain miscellaneous documents and matters

59 Comparison of disputed writing

60 Proof of instrument to validity of which attestation is not necessary

61 Proof of instrument to validity of which attestation is necessary

62 Presumption as to documents 20 years old

63 Wills, deeds etc. may be verified by declaration

64 Evidentiary effect of probate etc.

65 Maps, charts etc.

66 Astronomical phenomena

Division 3 Proof of certain Australian and overseas documents and matters

67 Definitions for div 3

68 Proof of certain Australian and overseas written laws etc.

69 Proof of judicial proceedings of an overseas country

70 Proof of certain documents admissible elsewhere in Australia

71 Royal proclamations, orders of the Privy Council etc.

72 Proof of certain Australian and overseas public documents

73 Proof of incorporation or registration of certain Australian and overseas companies

74 Proof of birth, adoption, death or marriage

Division 4 Proof of telegraphic messages

75 Notice of intention to adduce telegraphic message in evidence

76 Proof of message

77 Proof of sending a message

Division 5 Admissibility of convictions in civil proceedings

78 Definitions for div 5

79 Convictions as evidence in civil proceedings

80 Convictions as evidence in actions for defamation

81 Evidence identifying the particulars of a conviction

82 Operation of other laws not affected

Division 6 Books of account

83 Definitions for div 6

84 Entries in book of account to be evidence

85 Proof that book is a book of account

86 Verification of copy

87 Matters which may be proved under this division ordinarily to be so proved

88 Court may order books of account or copies to be made available

89 Proof that a person has no account

90 Costs

91 Application of ss 84 –86 and 89

Part 6 Admissibility of statements and representations

92 Admissibility of documentary evidence as to facts in issue

93 Admissibility of documentary evidence as to facts in issue in criminal proceedings

93A Statement made before proceeding by child or person with an impairment of the mind

93AA Unauthorised possession of, or dealing in, s 93A criminal statements

93B Admissibility of representation in prescribed criminal proceedings if person who made it is unavailable

93C Warning and information for jury about hearsay evidence

94 Admissibility of evidence concerning credibility of persons responsible for statement

95 Admissibility of statements in documents or things produced by processes or devices

95A DNA evidentiary certificate

96 Inferences concerning admissibility

97 Authentication

98 Rejection of evidence

99 Withholding statement from jury room

100 Corroboration

101 Witness’s previous statement, if proved, to be evidence of facts stated

102 Weight to be attached to evidence

103 Provisions of part are alternative

Part 7 Reproductions of documents

Division 1 Preliminary

104 Definitions for part

Division 2 Reproduction of official documents

105 Certified reproductions of certain official documents etc. to be admissible without further proof

Division 3 Reproduction of business documents

106 Admissibility of reproductions of business documents destroyed, lost or unavailable

107 Use of photographing machines

108 Affidavit of maker of print from transparency to be evidence

109 Proof where document processed by independent processor

110 Reproduction not to be admitted as evidence unless transparency in existence

111 Transparency etc. may be preserved in lieu of document

112 Proof of destruction of documents etc.

113 One affidavit sufficient in certain circumstances

114 Certification required when affidavit etc. not contained in length or series of film

115 Discovery, inspection and production where document destroyed or lost

Division 4 General

116 Copies to be evidence

117 Further reproduction may be ordered by court

118 Colours and tones of reproductions

119 Notice to produce not required

120 Proof of comparisons not required

121 Presumptions as to ancient documents

122 Reproductions made in other States

123 Judicial notice

124 A court may reject reproduction

125 Weight of evidence

126 Provisions of part are alternative

127 [Repealed]

128 Regulation may exclude application of provisions

129 Public Records Act 2002 not affected

Part 8 Miscellaneous

129A Order that evidence may be given in a different way

129B Person may be examined without subpoena or other process

130 Rejection of evidence in criminal proceedings

131 Witnesses for defence to be sworn

131A Court may order interpreter to be provided

132 Actions for breach of promise of marriage

132A Admissibility of similar fact evidence

132B Evidence of domestic violence

132C Fact finding on sentencing

133 Impounding documents

133A DNA analysts

134 Power to appoint a government printer

134A Production of documents by agencies in relation to civil proceedings

134B Approval of forms

135 Regulation-making power

Part 9 Transitional and declaratory provisions

Division 1 Evidence Amendment Act 2000

136 Transitional—Evidence Amendment Act 2000

Division 1A Justice and Other Legislation Amendment Act 2003

136A Declaratory provision for Justice and Other Legislation Amendment Act 2003

Division 2 Evidence (Protection of Children) Amendment Act 2003

137 Definitions for div 2

138 Communications between a husband and wife

139 Evidence admitted under repealed s 9

140 Committal proceeding

141 Prerecording of evidence for a summary trial

142 Prerecording of evidence for a trial on indictment

Division 3 Cross-Border Law Enforcement Legislation Amendment Act 2005

143 Witness anonymity certificates

Division 4 Justice and Other Legislation Amendment Act 2005

144 Statement made before proceeding by child or person with an impairment of the mind

145 Definition chief executive (surveys)

Division 5 Criminal Code and Other Acts Amendment Act 2008

146 References to particular Criminal Code offences

Division 6 Health and Other Legislation Amendment Act 2016

147 Prescribed special offence taken to include references to Criminal Code , ss 208 and 209

Division 7 Serious and Organised Crime Legislation Amendment Act 2016

148 Special witnesses

Division 8 Criminal Law Amendment Act 2017

149 Definition for division

150 Admissibility of particular copies of videorecordings made before commencement

151 Destruction of recordings made before commencement

152 Application of DNA evidentiary certificate provision to proceedings started before commencement

Division 9 Victims of Crime Assistance and Other Legislation Amendment Act 2017

153 Sexual assault counselling privilege

Schedule 1 Examples of offices of a public nature established under an Act

Schedule 3 Dictionary

line

An Act to consolidate, amend and reform the law of evidence and for related purposes

Part 1 Preliminary

  1. Short title

This Act may be cited as the Evidence Act 1977 .

2Act binds Crown

This Act binds the Crown not only in right of the State of Queensland but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

2ANotes in text

A note in the text of this Act is part of the Act .

3Definitions

The dictionary in schedule 3 defines particular words used in this Act.

4Meaning of copy of document etc.

In this Act, any reference to a copy of a document includes—

(a)in the case of a document falling within paragraph (e) but not paragraph (f) of the definition document in schedule 3 —a transcript of the sounds or other data embodied therein; and

(b)in the case of a document falling within paragraph (f) but not paragraph (e) of that definition—a reproduction or still reproduction of the image or images embodied therein, whether enlarged or not; and

(c)in the case of a document falling within both those paragraphs—such a transcript together with such a reproduction or still reproduction; and

(d)in the case of a document not falling within the said paragraph (f) of which a visual image is embodied in a document falling within that paragraph—a reproduction or still reproduction of that image, whether enlarged or not;

and any reference to a copy of the material part of a document shall be construed accordingly.

5Meaning of document purporting to be of certain character etc.

For the purposes of this Act a document, including any instrument or part of an instrument, purports—

(a)to be of a certain character; or

(b)to have been produced or authenticated at a certain time, in a certain manner, by a certain person or body, or by a person having a certain qualification or occupying a certain office; or

(c)any other matter whatever;

if the document expressly or impliedly represents that matter or a court can assume that matter from the contents of the document or otherwise.

Part 2 Witnesses

Division 1 Who may testify

6Witnesses interested or convicted of offence

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

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

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

7Parties, their wives and husbands as witnesses

(1)Each of the parties to a proceeding (not being a criminal proceeding) and a person on whose behalf such a proceeding is brought or defended is competent and compellable to give evidence on behalf of either or any of the parties to the proceeding.

(2)The husband or wife of a party to a proceeding (not being a criminal proceeding) and the husband or wife of a person on whose behalf such a proceeding is brought or defended is competent and compellable to give evidence on behalf of either or any of the parties to the proceeding.

(3)To remove any doubt, it is declared for subsections (1) and (2) that a party to a proceeding includes a person who is the subject of an inquiry, reference or examination.

8Witnesses in a criminal proceeding

(1)In a criminal proceeding, each person charged is competent to give evidence on behalf of the defence (whether that person is charged solely or jointly with any other person) but is not compellable to do so.

(2)The husband or wife of an accused person in a criminal proceeding is competent and compellable to give evidence in the proceeding in any court, either for the prosecution or for the defence, and without the consent of the accused.

(3)In a criminal proceeding, a husband or wife is competent and compellable to disclose communications made between the husband and the wife during the marriage.

Division 1A Competency of witnesses and capacity to be sworn

9Presumption as to competency

(1)Every person, including a child, is presumed to be—

(a)competent to give evidence in a proceeding; and

(b)competent to give evidence in a proceeding on oath.

(2)Subsection (1) is subject to this division.

9ACompetency to give evidence

(1)This section applies if, in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness in the proceeding to give evidence.

(2)The person is competent to give evidence in the proceeding if, in the court’s opinion, the person is able to give an intelligible account of events which he or she has observed or experienced.

(3)Subsection (2) applies even though the evidence is not given on oath.

9BCompetency to give sworn evidence

(1)This section applies if, in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness in the proceeding to give evidence on oath.

(2)The person is competent to give evidence in the proceeding on oath if, in the court’s opinion, the person understands that—

(a)the giving of evidence is a serious matter; and

(b)in giving evidence, he or she has an obligation to tell the truth that is over and above the ordinary duty to tell the truth.

(3)If the person is competent to give evidence in the proceeding but is not competent to give the evidence on oath, the court must explain to the person the duty of speaking the truth.

Note—

The Oaths Act 1867 , section 17 , makes provision for a person called as a witness to make his or her solemn affirmation instead of being sworn.

9CExpert evidence about witness’s ability to give evidence

(1)This section applies to a proceeding if—

(a)under section 9A , the court is deciding whether a person is able to give an intelligible account of events which he or she has observed or experienced; or

(b)under section 9B , the court is deciding whether a person understands the matters mentioned in section 9B (2)(a) and (b); or

(c)the evidence of a child under 12 years is admitted.

(2)Expert evidence is admissible in the proceeding about the person’s or child’s level of intelligence, including the person’s or child’s powers of perception, memory and expression, or another matter relevant to the person’s or child’s competence to give evidence, competence to give evidence on oath, or ability to give reliable evidence.

9DEvidence admitted under s 9A

(1)Evidence admitted under section 9A that is written down as a deposition is taken to be a deposition for all purposes.

(2)If evidence is admitted under section 9A —

(a)the probative value of the evidence is not decreased only because the evidence is not given on oath; and

(b)a person charged with an offence may be convicted on the evidence; and

(c)the person giving the evidence is liable to be convicted of perjury to the same extent as if the person had given the evidence on oath.

Division 1B Special provisions for child witnesses

9EPrinciples for dealing with a child witness

(1)Because a child tends to be vulnerable in dealings with a person in authority, it is the Parliament’s intention that a child who is a witness in a proceeding should be given the benefit of special measures when giving the child’s evidence.

(2)The following general principles apply when dealing with a child witness in a proceeding—

(a)the child is to be treated with dignity, respect and compassion;

(b)measures should be taken to limit, to the greatest practical extent, the distress or trauma suffered by the child when giving evidence;

(c)the child should not be intimidated in cross-examination;

(d)the proceeding should be resolved as quickly as possible.

(3)In this section—

child means a child under 16 years.

Division 2 Privileges and obligations of witnesses

10Privilege against self-incrimination

(1)Nothing in this Act shall render any person compellable to answer any question tending to criminate the person.

(2)However, in a criminal proceeding where a person charged gives evidence, the person’s liability to answer any such question shall be governed by section 15 .

12Admissibility of evidence as to access by husband or wife

Notwithstanding anything contained in any Act or any rule of law, neither the evidence of any person nor any statement made out of court by any person shall be inadmissible in any proceeding whatever by reason of the fact that it is tendered with the object of proving, or that it proves or tends to prove, that marital intercourse did or did not take place at any time or during any period between that person and a person who is or was the person’s wife or husband or that any child is or was, or is not or was not, their legitimate child.

13Compellability of parties and witnesses as to evidence of adultery

Notwithstanding anything in any Act or any rule of law, in any proceeding whatever—

(a)a party shall not be entitled to refuse to answer any interrogatory or to give discovery of documents;

(b)a witness, whether a party or not, shall not be entitled to refuse to answer any question, whether relevant to any issue or relating to credit merely;

on the ground solely that such answer or discovery would or might relate to, or would tend or might tend to establish, adultery by that party or that witness, or by any other person with that party or that witness, as the case may be.

14Abolition of certain privileges

(1)The following rules of law are hereby abrogated except in relation to criminal proceedings, that is to say—

(a)the rule whereby, in any proceeding, a person can not be compelled to answer any question or produce any document or thing if to do so would tend to expose the person to a forfeiture;

(b)the rule whereby, in any proceeding, a person other than a party to the proceeding can not be compelled to produce any deed or other document relating to the person’s title to any land.

(2)The rule of law whereby, in any civil proceeding, a party to the proceeding can not be compelled to produce any document relating solely to the party’s own case and in no way tending to impeach that case or support the case of any opposing party is hereby abrogated.

Division 2A Sexual assault counselling privilege

Subdivision 1 Preliminary

14AMeaning of protected counselling communication

(1)A protected counselling communication is an oral or written communication made in confidence—

(a)by a counselled person to a counsellor; or

(b)by a counsellor to or about a counselled person to further the counselling process; or

(c)about a counselled person by a parent, carer or other support person who is present to facilitate communication between the counselled person and a counsellor or to otherwise further the counselling process.

(2)However, a communication made to or by a health practitioner about a physical examination of the counselled person conducted in the course of an investigation into an alleged sexual assault offence is not a protected counselling communication.

(3)For subsection (1) it does not matter whether the communication was made—

(a)before or after the act or omission constituting the sexual assault offence committed or allegedly committed against the counselled person occurred; or

(b)in connection with the sexual assault offence, or a condition arising from the sexual assault offence, committed or allegedly committed against the counselled person.

(4)A reference in this division to a protected counselling communication includes a reference to—

(a)a document to the extent it contains a protected counselling communication; or

(b)evidence to the extent it discloses a protected counselling communication.

(5)In this section—

health practitioner means a person registered under the Health Practitioner Regulation National Law to practise a health profession.

14BOther definitions for division

In this division—

counsel a person means—

(a)to listen to and give verbal or other support, help or encouragement to the person, whether one-on-one or in a group; or

(b)to advise, give therapy to or treat the person, whether one-on-one or in a group.

counselled person means a person who—

(a)is being, or has at any time been, counselled by a counsellor; and

(b)is, or has at any time been, a victim or alleged victim of a sexual assault offence.

counsellor means a person who—

(a)has undertaken training or study, or has experience, that is relevant to the process of counselling other persons; and

(b)in the course of the person’s paid or voluntary employment, other than as a religious representative, counsels another person.

essential person, for a proceeding, means any of the following persons—

(a)a Crown law officer or a person authorised by a Crown law officer;

(b)the prosecutor;

(c)a witness giving evidence;

(d)a person who a witness is entitled to have present in court under section 21A (2)(d) or 21AV or the Criminal Law (Sexual Offences) Act 1978 , section 5 (1) (f) ;

(e)a person whose presence is, in the court’s opinion, necessary or desirable for the proper conduct of the proceeding;

(f)a person who applies to the court to be present and whose presence, in the court’s opinion—

(i)would serve a proper interest of the person; and

(ii)would not be prejudicial to a counselled person’s interests.

religious representative means a person who—

(a)is a member of—

(i)an organised religion; or

(ii)a religious group, even if the group is not part of, or does not consider itself to be part of, an organised religion; and

(b)holds a position in the religion or group that allows the person to hold himself or herself out as a representative of the religion or group.

sexual assault offence means—

(a)an offence of a sexual nature, including, for example—

(i)an offence against a provision of the Criminal Code , chapter 32; and

(ii)an offence against a provision of the Criminal Code , chapter 22, other than section 224, 225 or 226; or

(b)an act or omission that would constitute an offence mentioned in paragraph (a) if the act or omission had occurred—

(i)in Queensland; or

(ii)after the offence provision commenced; or

(c)an alleged offence mentioned in paragraph (a).

Subdivision 2 Committal and bail proceedings

14CApplication of subdivision

This subdivision applies to—

(a)a committal proceeding; or

(b)a proceeding under the Bail Act 1980 relating to bail for an offence, including a proceeding relating to the remand of a person in custody.

14DSexual assault counselling privilege

A person can not do any of the following things in connection with the proceeding—

(a)compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;

(b)produce to a court, adduce evidence of or otherwise use, a protected counselling communication;

(c)otherwise disclose, inspect or copy a protected counselling communication.

Subdivision 3 Other proceedings

14EApplication of subdivision

This subdivision applies to a proceeding—

(a)for the trial or sentencing of a person for an offence, other than a proceeding to which subdivision 2 applies; or

(b)relating to a domestic violence order under the Domestic and Family Violence Protection Act 2012 .

14FSexual assault counselling privilege

A person can not do any of the following things in connection with the proceeding, other than with the leave of the court hearing the proceeding—

(a)compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;

(b)produce to a court, adduce evidence of or otherwise use, a protected counselling communication;

(c)otherwise disclose, inspect or copy a protected counselling communication.

14GApplication for leave

(1)A party to the proceeding may apply for leave of the court under this subdivision.

(2)As soon as reasonably practicable after the application is made, the applicant must give the following persons a notice complying with subsection (3)—

(a)each other party to the proceeding;

(b)if the counsellor to whom the protected counselling communication relates is not a party to the proceeding—the counsellor.

(3)For subsection (2), the notice is a written notice stating—

(a)an application for leave under this subdivision has been made in relation to a protected counselling communication; and

(b)a description of the nature and particulars of the protected counselling communication (other than particulars disclosing the content of the communication); and

(c)if the counsellor or counselled person to whom the communication relates is not a party to the proceeding—that the counsellor or counselled person may appear in the proceeding under section 14L .

(4)If the counselled person to whom the protected counselling communication relates is not a party to the proceeding, the prosecutor must, as soon as practicable after a notice is given under subsection (2), give the counselled person a copy of the notice.

(5)The court can not decide the application until at least 14 days after subsection (2) is complied with.

(6)However, the court may waive the requirement to comply with subsection (2) if, in relation to the proceeding—

(a)notice has been given of a previous application for leave under this subdivision relating to the same protected counselling communication; or

(b)the counselled person to whom the protected counselling communication relates has consented to the waiver of the requirement; or

(c)the court is satisfied—

(i)exceptional circumstances exist that require the waiver of the requirement; and

(ii)it is in the public interest to waive the requirement.

(7)For subsection (6)(b), the consent must be given—

(a)in writing; or

(b)if the counselled person can not give written consent because of a disability—orally.

14HDeciding whether to grant leave

(1)The court can not grant an application for leave under this subdivision unless the court is satisfied that—

(a)the protected counselling communication the subject of the application will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value; and

(b)other documents or evidence concerning the matters to which the communication relates are not available; and

(c)the public interest in admitting the communication into evidence substantially outweighs the public interest in—

(i)preserving the confidentiality of the communication; and

(ii)protecting the counselled person from harm.

(2)In deciding the matter mentioned in subsection (1)(c), the court must have regard to the following matters—

(a)the need to encourage victims of sexual assault offences to seek counselling;

(b)that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship;

(c)the public interest in ensuring victims of sexual assault offences receive effective counselling;

(d)that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person;

(e)whether disclosure of the communication is sought on the basis of a discriminatory belief or bias;

(f)that the disclosure of the communication is likely to infringe a reasonable expectation of privacy;

(g)the extent to which the communication is necessary to enable the accused person to make a full defence;

(h)any other matter the court considers relevant.

(3)For deciding the application, the court may consider a written or oral statement made to the court by the counselled person outlining the harm the person is likely to suffer if the application is granted.

(4)If an oral statement is made by the counselled person under subsection (3), while the statement is being made the court must exclude from the room in which the court is sitting—

(a)anyone who is not an essential person; and

(b)an essential person, if—

(i)the counselled person asks that the essential person be excluded; and

(ii)the court considers excluding the essential person would serve a proper interest of the counselled person.

(5)The court must not disclose, or make available to a party to the proceeding, a statement made to the court under subsection (3).

(6)The court must state its reasons for granting or refusing to grant the application.

(7)If the proceeding is a trial by jury, the court must hear and decide the application in the absence of the jury.

(8)In this section—

harm includes physical, emotional or psychological harm, financial loss, stress or shock, and damage to reputation.

Subdivision 4 Waiver or loss of privilege

14IWaiver of privilege by counselled person

(1)This section applies, in relation to a proceeding to which subdivision 2 or 3 applies, if a document or evidence is a protected counselling communication.

(2)This division does not prevent the document being produced, or the evidence being adduced, if the counselled person to whom the protected counselling communication relates—

(a)is 16 years or more; and

(b)consents to the production of the document or adducing of the evidence; and

(c)is not a person with an impaired capacity for giving the consent.

(3)For subsection (2)(b), the consent must—

(a)expressly state the counselled person—

(i)consents to the production of a stated document, or the adducing of stated evidence, that is a protected counselling communication relating to the person; and

(ii)has had an opportunity to seek legal advice about giving the consent; and

(b)be given—

(i)in writing; or

(ii)if the counselled person can not give written consent because of a disability—orally.

(4)To remove any doubt, it is declared that subsection (3)(b) does not require the office of the director of public prosecutions to give the counselled person legal advice.

(5)In this section—

impaired capacity see the Guardianship and Administration Act 2000 , schedule 4 .

14JLoss of privilege if communication made in commission of offence

This division does not apply to a document or evidence that is a protected counselling communication if the communication was made in the commission of an offence.

Subdivision 5 General provisions

14KCourt to inform of rights

(1)This section applies in relation to a proceeding to which subdivision 2 or 3 applies if it appears to the court a person may have grounds for—

(a)applying for leave under subdivision 3 ; or

(b)objecting to the production of a document, or the adducing of evidence, that is a protected counselling communication.

(2)The court must satisfy itself the person is aware of the relevant provisions of this division and has had an opportunity to seek legal advice.

(3)If the proceeding is a trial by jury, the court must satisfy itself of the matter under subsection (2) in the absence of the jury.

(4)To remove any doubt, it is declared that subsection (2) does not require the office of the director of public prosecutions to give the person legal advice.

14LStanding of counsellor and counselled person

(1)This section applies if—

(a)a counselled person or counsellor is not a party to a proceeding to which subdivision 2 or 3 applies; and

(b)the court is deciding whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication.

(2)The counselled person or counsellor may appear in the proceeding, including any appeal.

14MDeciding whether document or evidence is protected counselling communication

(1)This section applies if a question arises under this division in relation to a proceeding to which subdivision 2 or 3 applies.

(2)The court may consider a document or evidence to decide whether it is a protected counselling communication.

(3)While the court is considering the document or evidence, the court must exclude from the room in which it is sitting—

(a)anyone who is not an essential person; and

(b)an essential person, if—

(i)the counselled person to whom the document or evidence relates asks that the essential person be excluded; and

(ii)the court considers excluding the essential person would serve a proper interest of the counselled person.

(4)The court may make any other order it thinks fit to facilitate its consideration of the document or evidence.

(5)This section applies despite sections 14D and 14F.

14NAncillary orders

(1)A court may make any order it considers appropriate to limit the extent of the harm likely to be caused to the counselled person by the production of a document, or the adducing of evidence, that is a protected counselling communication relating to the person.

Example—

an order that all or part of the evidence be heard, or the document produced, in camera

(2)In this section—

harm see section 14H .

14OApplication of division despite Justices Act 1886

To the extent of an inconsistency, this division applies despite a provision of the Justices Act 1886 .

14PApplication of privilege in civil proceedings

(1)This section applies if, in a proceeding to which subdivision 2 or 3 applies, a protected counselling communication is privileged under this division.

Note—

A protected counselling communication is not privileged under this division if—

(a)leave is granted under subdivision 3 in relation to it; or

(b)the privilege is waived or lost under subdivision 4 .

(2)A person can not produce a document containing, or adduce evidence of, the protected counselling communication in a civil proceeding arising from the act or omission to which the proceeding mentioned in subsection (1) relates.

Division 3 Examination and cross-examination of witnesses

15Questioning a person charged in a criminal proceeding

(1)Where in a criminal proceeding a person charged gives evidence, the person shall not be entitled to refuse to answer a question or produce a document or thing on the ground that to do so would tend to prove the commission by the person of the offence with which the person is there charged.

(2)Where in a criminal proceeding a person charged gives evidence, the person shall not be asked, and if asked shall not be required to answer, any question tending to show that the person has committed or been convicted of or been charged with any offence other than that with which the person is there charged, or is of bad character, unless—

(a)the question is directed to showing a matter of which the proof is admissible evidence to show that the person is guilty of the offence with which the person is there charged;

(b)the question is directed to showing a matter of which the proof is admissible evidence to show that any other person charged in that criminal proceeding is not guilty of the offence with which that other person is there charged;

(c)the person has personally or by counsel asked questions of any witness with a view to establishing the person’s own good character, or has given evidence of the person’s good character, or 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 of any other person charged in that criminal proceeding;

(d)the person has given evidence against any other person charged in that criminal proceeding.

(3)A question of a kind mentioned in subsection (2)(a), (b) or (c) may be asked only with the court’s permission.

(4)If the proceeding is a trial by jury, an application for the court’s permission under subsection (3) must be made in the absence of the jury.

15AQuestioning of witness as to certain convictions

A witness in any criminal or civil proceeding shall not be asked and if asked shall not be required to answer any question tending to show that the witness has committed or been convicted of or been charged with any offence if, where the witness has been convicted of the offence—

(a)the conviction is one in relation to which a rehabilitation period is capable of running pursuant to the Criminal Law (Rehabilitation of Offenders) Act 1986 ; and

(b)in relation to the conviction the rehabilitation period within the meaning of that Act is not running at the time of the criminal or civil proceeding;

unless the permission of the court to ask the question has first been obtained, such permission to be applied for in a trial by jury in the absence of the jury.

16Witness may be questioned as to previous conviction

Subject to this Act, a witness may be questioned as to whether the witness has been convicted of any indictable or other offence and upon being so questioned, if the witness either denies the fact or refuses to answer, it shall be lawful for the party so questioning to prove such conviction.

17How far a party may discredit the party’s own witness

(1)A party producing a witness shall not be allowed to impeach the credit of the witness by general evidence of bad character but may contradict the witness by other evidence, or (in case the witness in the opinion of the court proves adverse) may by leave of the court prove that the witness has made at other times a statement inconsistent with the present testimony of the witness.

(2)However, before such last mentioned proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement.

18Proof of previous inconsistent statement of witness

(1)If a witness upon cross-examination as to a former statement made by the witness relative to the subject matter of the proceeding and inconsistent with the present testimony of the witness does not distinctly admit that the witness has made such statement, proof may be given that the witness did in fact make it.

(2)However, before such proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement.

19Witness may be cross-examined as to written statement without being shown it

(1)A witness may be cross-examined as to a previous statement made by the witness in writing or reduced into writing relative to the subject matter of the proceeding without such writing being shown to the witness.

(1A)However, if it is intended to contradict the witness by the writing the attention of the witness must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting the witness.

(2)A court may at any time during the hearing of a proceeding direct that the writing containing a statement referred to in subsection (1) be produced to the court and the court may make such use in the proceeding of the writing as the court thinks fit.

20Cross-examination as to credit

(1)The court may disallow a question as to credit put to a witness in cross-examination, or inform the witness the question need not be answered, if the court considers an admission of the question’s truth would not materially impair confidence in the reliability of the witness’s evidence.

(2)In this section—

question as to credit, for a witness, means a question that is not relevant to the proceeding except that an admission of the question’s truth may affect the witness’s credit by injuring the witness’s character.

21Improper questions

(1)The court may disallow a question put to a witness in cross-examination or inform a witness a question need not be answered, if the court considers the question is an improper question.

(2)In deciding whether a question is an improper question, the court must take into account—

(a)any mental, intellectual or physical impairment the witness has or appears to have; and

(b)any other matter about the witness the court considers relevant, including, for example, age, education, level of understanding, cultural background or relationship to any party to the proceeding.

(3)Subsection (2) does not limit the matters the court may take into account in deciding whether a question is an improper question.

(4)In this section—

improper question means a question that uses inappropriate language or is misleading, confusing, annoying, harassing, intimidating, offensive, oppressive or repetitive.

Division 4 Evidence of special witnesses

21AEvidence of special witnesses

(1)In this section—

criminal organisation see the Penalties and Sentences Act 1992 , section 161O .

domestic violence see the Domestic and Family Violence Protection Act 2012 , section 8 .

participant, in a criminal organisation, see the Penalties and Sentences Act 1992 , section 161P .

party includes a person who is present in court and is a member, a representative (other than a legal representative) or a nominee of an organisation that is a party to the proceeding.

relevant matter, for a person, means the person’s age, education, level of understanding, cultural background or relationship to any party to the proceeding, the nature of the subject matter of the evidence, or another matter the court considers relevant.

serious criminal offence means—

(a)an indictable offence punishable by at least 7 years imprisonment, including an offence against a repealed provision of an Act; or

(b)a prescribed offence as defined under the Penalties and Sentences Act 1992 , section 161N , other than an offence mentioned in paragraph (a), charged with a circumstance of aggravation stated in section 161Q of that Act.

sexual offence means an offence of a sexual nature, including, for example—

(a)an offence against a provision of the Criminal Code , chapter 32; and

(b)an offence against a provision of the Criminal Code , chapter 22, other than section 224, 225 or 226.

special witness means—

(a)a child under 16 years; or

(b)a person who, in the court’s opinion—

(i)would, as a result of a mental, intellectual or physical impairment or a relevant matter, be likely to be disadvantaged as a witness; or

(ii)would be likely to suffer severe emotional trauma; or

(iii)would be likely to be so intimidated as to be disadvantaged as a witness;

if required to give evidence in accordance with the usual rules and practice of the court; or

(c)a person who is to give evidence about the commission of a serious criminal offence committed by a criminal organisation or a participant in a criminal organisation; or

(d)a person—

(i)against whom domestic violence has been or is alleged to have been committed by another person; and

(ii)who is to give evidence about the commission of an offence by the other person; or

(e)a person—

(i)against whom a sexual offence has been, or is alleged to have been, committed by another person; and

(ii)who is to give evidence about the commission of an offence by the other person.

(1A)This section does not apply to a child to the extent division 4A applies to the child.

(1B)A party to a proceeding or, in a criminal proceeding, the person charged may be a special witness.

(2)Where a special witness is to give or is giving evidence in any proceeding, the court may, of its own motion or upon application made by a party to the proceeding, make or give 1 or more of the following orders or directions—

(a)in the case of a criminal proceeding—that the person charged or other party to the proceeding be excluded from the room in which the court is sitting or be obscured from the view of the special witness while the special witness is giving evidence or is required to appear in court for any other purpose;

(b)that, while the special witness is giving evidence, all persons other than those specified by the court be excluded from the room in which it is sitting;

(c)that the special witness give evidence in a room—

(i)other than that in which the court is sitting; and

(ii)from which all persons other than those specified by the court are excluded;

(d)that a person approved by the court be present while the special witness is giving evidence or is required to appear in court for any other purpose in order to provide emotional support to the special witness;

(e)that a videorecording of the evidence of the special witness or any portion of it be made under such conditions as are specified in the order and that the videorecorded evidence be viewed and heard in the proceeding instead of the direct testimony of the special witness;

(f)another order or direction the court considers appropriate about the giving of evidence by the special witness, including, for example, any of the following—

(i)a direction about rest breaks for the special witness;

(ii)a direction that questions for the special witness be kept simple;

(iii)a direction that questions for the special witness be limited by time;

(iv)a direction that the number of questions for a special witness on a particular issue be limited.

(4)Subject to any order made pursuant to subsection (5), in any criminal proceeding an order shall not be made pursuant to subsection (2)(a), (b) or (c) excluding the person charged from the room in which a special witness is giving evidence unless provision is made, by means of an electronic device or otherwise, for that person to see and hear the special witness while the special witness is giving evidence.

(5)Where the making of a videorecording of the evidence of a special witness is ordered pursuant to subsection (2)(e), the court may further order that all persons other than those specified by the court be excluded from the room in which the special witness is giving that evidence.

(5A)However, any person entitled in the proceeding to examine or cross-examine the special witness shall be given reasonable opportunity to view any portion of the videorecording of the evidence relevant to the conduct of that examination or cross-examination.

(6)A videorecording made under this section of evidence given by a special witness, or a lawfully edited copy of the videorecording—

(a)is as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court; and

(b)is, unless the relevant court otherwise orders, admissible in—

(i)any rehearing or retrial of, or appeal from, the proceeding; or

(ii)in the case of evidence given for a criminal proceeding—

(A)another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or

(B)a civil proceeding arising from the commission of the offence.

(6A)A reference in subsection (6) to a videorecording made under this section includes a reference to a copy of the videorecording on a separate data storage medium if—

(a)the videorecording is a digital recording; and

(b)the copy of the videorecording on the separate data storage medium has been made by—

(i)the principal registrar of a court; or

(ii)a person authorised by the principal registrar of a court to copy the videorecording onto the separate data storage medium.

(7)The room in which a special witness gives evidence pursuant to an order made pursuant to subsection (2)(c) or (e) shall be deemed to be part of the court in which the proceeding is being held.

(8)If evidence is given, or to be given, in a proceeding on indictment under an order or direction mentioned in subsection (2)(a) to (e), the judge presiding at the proceeding must instruct the jury that—

(a)they should not draw any inference as to the defendant’s guilt from the order or direction; and

(b)the probative value of the evidence is not increased or decreased because of the order or direction; and

(c)the evidence is not to be given any greater or lesser weight because of the order or direction.

21AAA Exclusion of particular persons while videorecording or usable soundtrack being presented

(1)This section applies if the evidence of a special witness contained in either of the following is to be presented at a proceeding—

(a)a videorecording made under section 21A , or a lawfully edited copy of the videorecording;

(b)the usable soundtrack of a videorecording, or a lawfully edited copy of a videorecording, mentioned in paragraph (a), or a lawfully edited copy of the usable soundtrack.

Note—

See part 2 , division 4AA in relation to the use of soundtracks from particular recordings.

(2)The court may, on its own initiative or on an application made by a party to the proceeding, order that, while the evidence is being presented at the proceeding, all persons other than those specified by the court be excluded from the room in which it is sitting.

(3)However, if the evidence is to be presented at a criminal proceeding, the court may not, under subsection (2), exclude the person charged.

Notes—

1See section 21A (2)(a) and (b), (4) and (5) in relation to the court’s power to exclude particular persons while a special witness is giving evidence under that section.

2See the Child Protection Act 1999 , section 193 for restrictions on disclosing identifying information about a special witness who is a child.

Division 4A Evidence of affected children

Subdivision 1 Preliminary

21AAPurposes of div 4A

The purposes of this division are—

(a)to preserve, to the greatest extent practicable, the integrity of an affected child’s evidence; and

(b)to require, wherever practicable, that an affected child’s evidence be taken in an environment that limits, to the greatest extent practicable, the distress and trauma that might otherwise be experienced by the child when giving evidence.

21ABHow purposes are to be achieved

To achieve the purposes of this division, the division prescribes the following measures for an affected child when giving evidence for a relevant proceeding—

(a)for a criminal proceeding—

(i)the child’s evidence is to be prerecorded in the presence of a judicial officer, but in advance of the proceeding;

(ii)if the measure in subparagraph (i) can not be given effect, the child’s evidence is to be given at the proceeding, but with the use of an audio visual link or with the benefit of a screen;

(iii)for a committal proceeding, the child’s evidence-in chief is to be given only as a statement and, ordinarily, the child is not to be called as a witness for cross-examination;

(b)for a civil proceeding, the child’s evidence is to be given at the proceeding with the use of an audio visual link or with the benefit of a screen.

21ACDefinitions for div 4A

In this division—

affected child means a child who is a witness in a relevant proceeding and who is not a defendant in the proceeding.

child see section 21AD .

civil proceeding arising from the commission of a relevant offence does not include a proceeding for a domestic violence order under the Domestic and Family Violence Protection Act 2012 .

counsel includes solicitor.

defendant means—

(a)in a criminal proceeding—a person charged with an offence; or

(b)in a civil proceeding arising from the commission of a relevant offence—a person whose act or omission is complained of.

offence involving violence means an offence against any of the following provisions of the Criminal Code —

•a provision of chapter 28 or 28A

•a provision of chapter 29 other than section 317A, 318, 319, 321, 321A, 327, 329, 330, 333 or 334

•sections 335, 339, 340, 354, 354A and 355

•a provision of chapter 33A

•sections 363, 363A and 364.

offence of a sexual nature means an offence against any of the following provisions of the Criminal Code —

•a provision of chapter 22 other than section 224, 225 or 226

•a provision of chapter 32.

parentage order relationship means a relationship arising because of—

(a)a parentage order under the Surrogacy Act 2010 ; or

(b)an order of another Australian jurisdiction that corresponds to a parentage order made under that Act.

preliminary hearing means a hearing under section 21AK .

prescribed relationship, between a child who is a witness in a proceeding and a defendant in the proceeding, means any of the following—

(a)a relationship, regardless of whether it is a half, adoptive, step or parentage order relationship, where the defendant is—

(i)a parent of the child; or

(ii)a grandparent of the child; or

(iii)a brother or sister of the child; or

(iv)an uncle, aunt, nephew, niece or cousin of the child;

(b)a relationship arising because, at the time of the alleged offence with which the defendant is charged, the defendant lived in the same household as the child;

(c)a relationship arising because the defendant had the care of, or exercised authority over, the child in a household on a regular basis.

proceeding means any civil or criminal proceeding, including a preliminary hearing.

relevant offence, in relation to a proceeding, means—

(a)an offence of a sexual nature; or

(b)an offence involving violence, if there is a prescribed relationship between a child who is a witness in the proceeding and a defendant in the proceeding.

relevant proceeding means—

(a)a criminal proceeding for a relevant offence, whether or not the proceeding also relates to other offences; or

(b)a civil proceeding arising from the commission of a relevant offence.

step relationship includes a relationship corresponding to a step relationship arising because of cohabitation in a de facto relationship or because of a foster relationship or a legal arrangement.

21ADMeaning of child

(1)For the purposes of a proceeding for this division, a child is—

(a)if the proceeding is a criminal proceeding—

(i)an individual who is under 16 years when the first of the following happens—

(A)the defendant in the proceeding is arrested;

(B)a complaint is made under the Justices Act 1886 , section 42 in relation to the defendant in the proceeding;

(C)a notice to appear is served on the defendant in the proceeding under the Police Powers and Responsibilities Act 2000 , section 382 ; or

(ii)an individual who is 16 or 17 years when the first of the matters mentioned in subparagraph (i) happens and who is a special witness; or

(b)if the proceeding is a civil proceeding arising from the commission of a relevant offence—

(i)an individual who is under 16 years when the proceeding starts; or

(ii)an individual who is 16 or 17 years when the proceeding starts and who is a special witness.

(2)An individual remains a child for the purposes of giving evidence for a proceeding if the child gives evidence for the proceeding at any time before the child turns 18 years.

Subdivision 2 Committal proceeding

21AEApplication of sdiv 2

This subdivision applies to the taking of an affected child’s evidence for a committal proceeding for a relevant offence, whether or not the committal proceeding also relates to other offences.

21AFEvidence-in-chief

(1)The affected child’s evidence-in-chief must be given as a statement without the child being called as a witness.

(2)For this section, the Justices Act 1886 , section 110A applies with all necessary changes and as though a reference in that section to a written statement included a reference to a statement contained in a document as defined under schedule 3 .

(3)Also, for the purposes of applying the Justices Act 1886 , section 110A , that section is to be read with the following changes—

(a)if the child’s statement is a written statement—subsections (4), (5), (6), (6B), (8) and (9) of that section were omitted;

(b)if the child’s statement is not a written statement—

(i)subsections (4), (5), (6), (6B), (6C), (8) and (9) of that section were omitted; and

(ii)in subsection (13)—

(A)the words ‘read as evidence’ were omitted and the words ‘received as evidence’ were inserted in their place; and

(B)paragraph (a) were omitted.

(4)Further, for the purposes of applying the Justices Act 1886 , section 111 , that section applies with all necessary changes and is to be read as though, in subsections (1) and (2), the words ‘read as evidence’ were omitted and the words ‘received as evidence’ were inserted in their place.

(5)In addition, for the purposes of applying the Criminal Law Amendment Act 1892 , section 4 , that section applies with all necessary changes and is to be read as though—

(a)a reference to a deposition included a reference to a statement contained in a document; and

(b)a reference to the reading of a deposition that is not a written statement included a reference to the showing of a statement contained in a document.

(6)In this section—

statement means—

(a)a written statement; or

(b)a statement contained in a document.

21AGCross-examination

(1)The affected child may be cross-examined only if, under this section, a magistrate requires a party to call the child as a witness for that purpose.

(2)The requirement may be made, on an application, by—

(a)a magistrate at a direction hearing under the Justices Act 1886 , section 83A ; or

(b)the magistrate presiding at the committal proceeding.

(3)A magistrate at a direction hearing must not require the child to be called as a witness for cross-examination unless the magistrate is satisfied that—

(a)the party seeking to cross-examine the child has—

(i)identified an issue to which the proposed questioning relates; and

(ii)provided a reason why the evidence of the child is relevant to the issue; and

(iii)explained why the evidence disclosed by the prosecution does not address the issue; and

(iv)identified to the magistrate the purpose and general nature of the questions to be put to the child to address the issue; and

(b)the interests of justice can not adequately be satisfied by leaving cross-examination of the child about the issue to the trial.

(4)The magistrate presiding at the committal proceeding must not require the child to be called as a witness for cross-examination unless the magistrate is satisfied that—

(a)the evidence before the court at the committal has identified an issue to which the proposed questioning relates that could not reasonably have been anticipated before the committal; and

(b)the party making the application has—

(i)provided a reason why the evidence of the child is relevant to the issue; and

(ii)explained why the evidence before the court does not address the issue; and

(iii)identified to the magistrate the purpose and general nature of the questions to be put to the child to address the issue; and

(c)the interests of justice can not adequately be satisfied by leaving cross-examination of the child about the issue to the trial.

(5)Without limiting the matters to which the magistrate may have regard for subsection (3)(b) or (4)(c), the magistrate—

(a)must consider whether—

(i)the prosecution case is adequately disclosed; and

(ii)the charge is adequately particularised; and

(b)must have regard to the vulnerability of children, the general principles stated in section 9E and the undesirability of calling a child as a witness for a committal proceeding.

(6)The magistrate must give reasons for the magistrate’s decision on the application.

(7)If, under this section, the magistrate requires a party to call the child as a witness for cross-examination—

(a)the child’s evidence must be taken under subdivision 3 or 4; and

(b)when the magistrate decides the application, the magistrate must decide whether the child’s evidence is to be taken under subdivision 3 or under subdivision 4 , and how it is to be taken, and give a direction accordingly.

(8)In deciding whether the child’s evidence is to be taken under subdivision 3 or 4, and how it is to be taken, the magistrate must have regard to the following—

(a)the distress or trauma likely to be suffered by the child when giving evidence and the need to minimise the child’s distress or trauma;

(b)whether a local court has an audio visual link and, if not, the availability of another appropriate place with appropriate equipment and facilities for taking or videorecording the child’s evidence under subdivision 3 or 4;

(c)whether the parties would be substantially inconvenienced if the proceeding were to be adjourned to another place mentioned in paragraph (b) that is not within the same locality as the court;

(d)the need for committal proceedings to be conducted expeditiously.

(9)In this section—

local court means—

(a)in relation to a magistrate at a direction hearing—a court at which the committal proceeding would ordinarily be held; or

(b)in relation to the magistrate presiding at the committal proceeding—the court in which the committal proceeding is being held or another court within the court precincts.

magistrate, presiding at a committal proceeding, includes justices presiding at the proceeding.

21AHLimitation on cross-examination

(1)If the affected child is to be cross-examined, the party calling the child may first ask the child questions for identifying the child and establishing that the child made the statement mentioned in section 21AF and the truthfulness of the statement.

(2)The presiding magistrate or justices must not allow the child to be cross-examined about an issue other than the issue in relation to which the child was required to be called unless the magistrate or justices are satisfied as mentioned in section 21AG (3)(a) and (b) or section 21AG (4)(a) to (c), whichever is relevant, in relation to the issue.

(3)Also, the presiding magistrate or justices—

(a)must not allow cross-examination to continue to the extent it—

(i)does not appear relevant to an issue for which it may be conducted; or

(ii)consists of exploratory questions asked in the hope of receiving any answer of any assistance to the party conducting the cross-examination, commonly known as a ‘fishing expedition’; and

(b)must disallow a question that may be disallowed under section 20 or 21 .

(4)The child may be re-examined by the party calling the child.

Subdivision 3 Prerecording of affected child’s evidence

21AIApplication of sdiv 3

(1)This subdivision applies to taking an affected child’s evidence—

(a)for a summary trial for a relevant offence; and

(b)for a trial on indictment for a relevant offence; and

(c)for a committal proceeding for a relevant offence, if a magistrate or justices give a direction as mentioned in section 21AG (7)(b) that the child’s evidence is to be taken under this subdivision.

(2)However, this subdivision does not apply to an affected child who is a witness for the defence.

(3)Subsection (1) applies to a proceeding whether or not the proceeding also relates to offences other than the relevant offence.

21AJPresentation of indictment

If the affected child’s evidence is to be taken for a trial on indictment, the indictment must be presented before the evidence can be taken under this subdivision.

21AKVideorecording of affected child’s evidence

(1)The affected child’s evidence must be taken and videorecorded at a hearing under this section (a preliminary hearing) presided over by a judicial officer.

Note—

See section 21AO for when a court may order that an affected child’s evidence not be taken and videorecorded under this subdivision.

(2)The videorecording must be presented—

(a)if taken for a committal proceeding—to the court at the committal proceeding; or

(b)if taken for a trial—to the court at the trial.

(3)To facilitate the operation of this section for the taking of the child’s evidence in a proceeding, the judicial officer may order that the preliminary hearing be conducted by audio visual link.

(4)The provisions of part 3A relating to the use of an audio visual link in criminal proceedings apply for, and are not limited by, subsection (3).

(5)To facilitate the operation of this section for a trial, the judicial officer must, if it is not practicable at the place of the trial to take and videorecord the child’s evidence—

(a)adjourn the trial to an appropriately equipped place to allow the evidence to be taken and videorecorded; or

(b)make another order the judicial officer considers appropriate including, for example, an order that the preliminary hearing be conducted by audio visual link.

(6)If the taking and videorecording of the child’s evidence is done at a place that is not a courtroom, the place is taken to be a courtroom for all purposes for the preliminary hearing.

(7)It does not matter whether or not the judicial officer presiding and the counsel appearing at the preliminary hearing are the same judicial officer presiding and counsel appearing at an adjourned preliminary hearing or at the proceeding in which the videorecording is presented to the court.

(8)Also, it does not matter if, while the preliminary hearing is conducted, the judicial officer, counsel, parties and witnesses are at different places.

Example—

To facilitate the taking and videorecording of the affected child’s evidence, the judicial officer directs that the child give the evidence by audio visual link. The preliminary hearing is conducted while the judicial officer, counsel and defendant are in a courtroom in a particular city and the child is in a room in another city connected to the courtroom through the audio visual link.

(9)In this section—

appropriately equipped place, for the taking and videorecording of an affected child’s evidence, means a court, or another place that is not a court, that—

(a)is equipped to take and videorecord the child’s evidence; and

(b)allows the defendant to see and hear the child while the child is giving evidence, for example, through an audio visual link.

evidence means evidence-in-chief or evidence given in cross-examination or re-examination.

21ALCourt to give directions for taking an affected child’s evidence

(1)The judicial officer presiding at the preliminary hearing may make any order the judicial officer considers appropriate in relation to taking and videorecording the affected child’s evidence.

(2)Without limiting subsection (1), the judicial officer may give directions, with or without conditions, as to the conduct of the preliminary hearing, including directions as to—

(a)whether the child is to be in the courtroom or a separate room when the child’s evidence is being taken; and

(b)the persons who may be present in the same room as the child when the child’s evidence is being taken.

(3)Subsection (2)(b) is subject to section 21AU .

Note—

Section 21AU makes provision about the exclusion of persons while an affected child witness is giving evidence in relation to a relevant offence.

(4)At the preliminary hearing—

(a)the defendant—

(i)must not be in the same room as the child when the child’s evidence is being taken; but

(ii)must be capable of seeing and hearing the child while the child is giving evidence; and

(b)subject to the judicial officer’s control, the child is to give his or her evidence-in-chief and be cross-examined and re-examined; and

(c)except as provided by this subdivision, the usual rules of evidence apply.

(5)The judicial officer may adjourn the hearing from time to time until the taking and videorecording of the child’s evidence is complete.

21AMUse of prerecorded evidence

(1)The affected child’s evidence contained in a videorecording made under this subdivision for a proceeding, or in a lawfully edited copy of the videorecording—

(a)is as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court; and

(b)is, unless the relevant court otherwise orders, admissible in—

(i)any rehearing or retrial of, or appeal from, the proceeding; or

(ii)another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or

(iii)a civil proceeding arising from the commission of the relevant offence.

(2)The admissibility of the evidence for a proceeding is not affected only because the child turns 18 before the evidence is presented at the proceeding.

(3)A reference in subsection (1) to a videorecording made under this subdivision for a proceeding includes a reference to a copy of the videorecording on a separate data storage medium if—

(a)the videorecording is a digital recording; and

(b)the copy of the videorecording on the separate data storage medium has been made by—

(i)the principal registrar of a court; or

(ii)a person authorised by the principal registrar of a court to copy the videorecording onto the separate data storage medium.

21ANGiving of further evidence

(1)This section applies if the affected child has given evidence under this subdivision for a proceeding and has been excused from further attendance as a witness at the proceeding.

(2)A party may apply to the court for an order that the child—

(a)give further evidence under this subdivision at another preliminary hearing; or

(b)attend at the proceeding to give further evidence.

(3)The court must not make the order unless satisfied that—

(a)if the child were giving evidence before a court in the ordinary way, the child could be recalled to give further evidence; and

(b)it would be in the interests of justice to make the order.

(4)The court must not make an order that the child attend at the proceeding to give further evidence unless satisfied it is not possible or not practical for the child to give the further evidence at another preliminary hearing.

21AOCourt order that evidence not to be taken and recorded under this sdiv

(1)This section applies if an affected child is to give evidence in a criminal proceeding, other than a committal proceeding, for a relevant offence.

(2)A party may apply to the court for an order that the child’s evidence not be taken and videorecorded under this subdivision.

(3)The court may make the order for good reason, having regard to the child’s wishes and the purposes of this division.

Example—

If a courtroom or other place with facilities to take and videorecord the affected child’s evidence is not likely to be available within a reasonable time, the court may decide the child’s interests are better served by dealing with the proceeding quickly rather than waiting for a courtroom or other place with the necessary facilities to become available.

Subdivision 4 Taking of affected child’s evidence using audio visual link or screen

21APApplication of sdiv 4

(1)This subdivision applies to taking an affected child’s evidence—

(a)for a summary trial for a relevant offence, if the evidence is not taken under subdivision 3 ; or

(b)for a trial on indictment for a relevant offence, if the evidence is not taken under subdivision 3 ; or

(c)for a committal proceeding for a relevant offence, if a magistrate or justices give a direction as mentioned in section 21AG (7)(b) that the child’s evidence is to be taken under this subdivision; or

(d)for summary trial, trial on indictment or committal proceeding for a relevant offence, if the child is ordered under section 21AN to attend at the proceeding to give further evidence; or

(e)for a civil proceeding arising from the commission of a relevant offence.

(2)Subsection (1) applies to a proceeding whether or not the proceeding also relates to offences other than the relevant offence.

21AQAudio visual links or screening arrangements must be used

(1)This section—

(a)applies subject to any order under section 21AR ; and

(b)has effect despite the Criminal Code , section 617 .

(2)If there is an audio visual link within the court precincts, the judicial officer presiding at the proceeding for the giving of evidence by the affected child must direct that—

(a)the child give evidence outside the courtroom and the evidence be transmitted to the courtroom by means of the audio visual link; or

(b)while the child is giving evidence, the defendant be held in a room apart from the courtroom and the evidence be transmitted to that room by means of the audio visual link.

(3)It is not necessary that the place outside the courtroom at which the child gives evidence under subsection (2)(a) be within the court precincts.

(4)If a direction is given under subsection (2)(a) or (b) and the audio visual link enables videorecording, the child’s evidence must be videorecorded.

(5)If a direction can not be given under subsection (2)(a) or (b), a screen, one-way glass or other thing must be so placed in relation to the child while he or she is giving evidence that the child can not see the defendant.

(6)A videorecording of the child’s evidence made under this section, or a lawfully edited copy of the videorecording, is, unless the relevant court otherwise orders, admissible in—

(a)any rehearing or retrial of, or appeal from, the proceeding; or

(b)another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or

(c)a civil proceeding arising from the commission of the relevant offence.

(7)A reference in subsection (6) to a videorecording made under this section includes a reference to a copy of the videorecording on a separate data storage medium if—

(a)the videorecording is a digital recording; and

(b)the copy of the videorecording on the separate data storage medium has been made by—

(i)the principal registrar of a court; or

(ii)a person authorised by the principal registrar of a court to copy the videorecording onto the separate data storage medium.

21ARCourt may order that s 21AQ does not apply

(1)This section applies if—

(a)a relevant proceeding has been started in a court; and

(b)an affected child is to give evidence in the proceeding.

(2)The party who is to call the child as a witness may apply to the presiding judicial officer for an order that section 21AQ is not to apply to the child.

(3)The judicial officer may grant the application only if the judicial officer is satisfied the child is able and wishes to give evidence in the defendant’s presence without using an audio visual link or a screen.

Subdivision 5 General

21ASProsecutor or applicant to advise that an affected child is to give evidence

(1)The prosecutor or applicant in a relevant proceeding must inform the court, before the proceeding starts, that an affected child may give evidence in the proceeding.

(2)For a trial on indictment, the prosecutor must inform the court at the time the indictment is presented.

(3)A failure to comply with subsection (1) or (2) does not prevent an affected child’s evidence being taken or videorecorded under this division or affect the admissibility of the evidence.

21ATIdentification of persons or things by affected child

(1)This section applies if an affected child is required to identify a person, including the defendant, or thing when the child is giving evidence.

(2)The court may make the orders it considers appropriate to ensure that the identification is carried out in a way that limits the distress or trauma that might be suffered by the child when making the identification.

Note—

See section 9E for the general principles to be applied when dealing with a child witness.

(3)The court must also decide at what point during the giving of the child’s evidence the identification is to be made.

(4)If an affected child is required to be in the defendant’s presence for the purposes of identification, the child should not be required to be in the defendant’s presence for the identification for any longer than is necessary.

21AUExclusion of public

(1)This section applies if—

(a)an affected child is to give evidence under subdivision 3 or 4 in a relevant proceeding; or

(b)the evidence of an affected child contained in either of the following is to be presented at a relevant proceeding—

(i)a videorecording made under subdivision 3 or 4, or a lawfully edited copy of the videorecording;

(ii)the usable soundtrack of a videorecording, or a lawfully edited copy of a videorecording, mentioned in subparagraph (i), or a lawfully edited copy of the usable soundtrack.

Note—

See part 2 , division 4AA in relation to the use of soundtracks from particular recordings.

(2)The court must make an order excluding from the room in which it is sitting all persons, other than essential persons, while—

(a)the child is giving the evidence mentioned in subsection (1)(a); or

(b)the evidence mentioned in subsection (1)(b) is being presented.

(3)However, subsection (2) does not apply if—

(a)the evidence to be given by the child, or presented at the proceeding, is other than in relation to an offence of a sexual nature; and

(b)the court is satisfied that the interests of justice require the evidence to be heard in open court.

Note—

See the Child Protection Act 1999 , section 193 for restrictions on disclosing identifying information about the affected child.

(4)In this section—

essential person, for a proceeding, means any of the following persons—

(a)a party to the proceeding and the party’s counsel;

(b)a Crown law officer or a person authorised by a Crown law officer;

(c)the prosecutor;

(d)a person whose presence is, in the court’s opinion, necessary or desirable for the proper conduct of the proceeding;

(e)a support person for the child under section 21AV ;

(f)a person who applies to the court to be present and whose presence, in the court’s opinion—

(i)would serve a proper interest of the person; and

(ii)would not be prejudicial to the child’s interests.

21AVAffected child entitled to support

(1)An affected child, while he or she is giving evidence in a relevant proceeding, is entitled to have near to him or her a person who may provide the child with support (a support person).

(2)A person may be the child’s support person only if the person is approved by the court on application by the party proposing to call the child.

(3)The support person must be permitted to be in close proximity to the child, and within the child’s sight, while the child is giving evidence.

(4)An affected child may, with the agreement of the court, waive the entitlement to a support person under subsection (1).

(5)The court must not agree to the waiver if the court considers the waiver is not in the child’s best interests.

21AWInstructions to be given to jury

(1)This section applies to a proceeding on indictment if any of the following measures is taken—

(a)an affected child’s evidence is taken in a way provided for under subdivision 3 or 4;

(b)a person is excluded under section 21AU while an affected child gives evidence or a videorecording, or usable soundtrack of a videorecording, containing the evidence of an affected child is presented;

(c)an affected child has a support person under section 21AV while the child gives evidence.

(2)The judicial officer presiding at the proceeding must instruct the jury that—

(a)the measure is a routine practice of the court and that they should not draw any inference as to the defendant’s guilt from it; and

(b)the probative value of the evidence is not increased or decreased because of the measure; and

(c)the evidence is not to be given any greater or lesser weight because of the measure.

21AXOrders, directions and rulings concerning affected child witnesses

(1)The court may make any orders or give any directions or rulings it considers appropriate for this division on the court’s own initiative or on an application made to the court by a party to the proceeding.

(2)Subsection (1) does not limit the Criminal Code , section 590AA or the Justices Act 1886 , section 83A .

Division 4AA Use of soundtracks from particular videorecordings

21AXA Definition for division

In this division—

relevant witness see section 21AXC (1)(a).

21AXB Meaning of usable soundtrack

A videorecording has a usable soundtrack if sound can be produced from the accompanying soundtrack of the videorecording, even if moving images can not be produced from the videorecording.

21AXC Court may make order for presentation of usable soundtrack

(1)This section applies if—

(a)a videorecording has been made—

(i)under section 21A of the evidence of a special witness (a relevant witness); or

(ii)under division 4A , subdivision 3 or 4 of the evidence of an affected child (also a relevant witness); and

(b)the evidence of the relevant witness contained in the videorecording is admissible in a proceeding as mentioned in section 21A (6), 21AM or 21AQ(6); and

(c)moving images can not be produced from the videorecording or a lawfully edited copy of the videorecording; and

(d)the videorecording, or a lawfully edited copy of the videorecording, has a usable soundtrack.

(2)The court may order that the usable soundtrack of the videorecording of the evidence of the relevant witness, or of the lawfully edited copy of the videorecording, may be presented at the proceeding.

(3)The court may make an order under subsection (2)—

(a)on the court’s own initiative or on the application of a party to the proceeding; and

(b)only if the court is satisfied it would be in the interests of justice to make the order.

21AXD Use of usable soundtrack

(1)This section applies if the court makes an order under section 21AXC (2) that the usable soundtrack of either of the following may be presented at a proceeding—

(a)a videorecording of the evidence of a relevant witness made under section 21A or division 4A , subdivision 3 or 4;

(b)a lawfully edited copy of a videorecording mentioned in paragraph (a).

(2)If the relevant witness is a special witness, section 21A (6) applies as if the reference in the subsection to a videorecording made under that section were a reference to the usable soundtrack of the videorecording or of the lawfully edited copy of the videorecording.

(3)If the relevant witness is an affected child whose evidence has been taken under division 4A , subdivision 3 , section 21AM applies as if the reference in section 21AM (1) to a videorecording made under division 4A , subdivision 3 were a reference to the usable soundtrack of the videorecording or of the lawfully edited copy of the videorecording.

(4)If the relevant witness is an affected child whose evidence has been taken under division 4A , subdivision 4 , section 21AQ (6) applies as if the reference in the subsection to a videorecording of the child’s evidence made under that section were a reference to the usable soundtrack of the videorecording or of the lawfully edited copy of the videorecording.

Division 4B Dealings with, and destruction of, recordings

Subdivision 1 Preliminary

21AYDefinitions for div 4B

In this division—

authorised destruction day see section 21AZF (1).

minimum retention period see section 21AZE (4)(a).

presiding judicial officer, in relation to a recording, means the judicial officer presiding at—

(a)the proceeding in which the recording is made; or

(b)the proceeding in which the recording is presented or to be presented; or

(c)a hearing for giving a direction or ruling under the Criminal Code , section 590AA ; or

(d)a direction hearing under the Justices Act 1886 , section 83A .

recording means—

(a)a videorecording of a special witness’s evidence made under section 21A ; or

(b)a videorecording of an affected child’s evidence made under division 4A , subdivision 3 or 4; or

(c)a copy of a videorecording mentioned in paragraph (a) or (b); or

(d)the usable soundtrack of a videorecording mentioned in paragraph (a), (b) or (c).

Subdivision 2 Dealings with recordings

21AZApproval to edit or otherwise change a recording

(1)An original recording must not be edited or otherwise changed in any way.

(2)The presiding judicial officer may, on application, give approval for a copy of an original recording to be edited or changed in a stated way.

Example—

The presiding judicial officer may give approval for a copy of an original recording to be edited to omit certain inadmissible material.

21AZA Court to give directions about the use or safekeeping of a recording

(1)The presiding judicial officer may make any order the judicial officer considers appropriate about the use or safekeeping of a recording.

(2)Without limiting subsection (1), the presiding judicial officer may give directions, with or without conditions, as to—

(a)the persons, or classes of persons, who are authorised to have possession of a recording; and

(b)the giving up of possession of a recording.

(3)The presiding judicial officer must have regard to the following matters when deciding the persons, or classes of persons, who are authorised to have possession of a recording—

(a)the need for counsel involved in the proceeding to have access to the recording;

(b)the need to ensure that persons authorised to have possession of the recording are able to take appropriate measures to ensure there is no unauthorised access to the recording.

(4)In this section—

use, of a recording, includes copying of the recording.

21AZB Unauthorised possession of, or dealing with, recording

(1)A person commits an offence who, without authority—

(a)has a recording in his or her possession; or

(b)supplies, or offers to supply, a recording to any person; or

(c)plays, copies or erases a recording or permits a person to play, copy or erase a recording.

Maximum penalty—

(a)for an individual—100 penalty units or 2 years imprisonment; or

(b)for a corporation—1,000 penalty units.

(2)A person has authority for subsection (1) only if the person has the possession or does the thing mentioned in subsection (1)—

(a)in the case of a public official—for a purpose connected with the proceeding for which the recording was made or any rehearing or retrial of, or appeal from, the proceeding, or civil proceeding in which the recording may be presented in evidence; or

(b)in the case of the principal registrar of a court—as authorised under a practice direction made under section 21AZE or section 21AZG ; or

(c)in any case—as authorised by a judicial officer under section 21AZA .

(3)In this section—

erase includes destroy.

21AZC Publishing a recording prohibited

(1)A person must not publish all or part of a recording other than with the approval of the relevant court and in accordance with any condition attached to the court’s approval.

Maximum penalty—

(a)for an individual—100 penalty units or 2 years imprisonment; or

(b)for a corporation—1,000 penalty units.

(2)An approval under subsection (1) may be given only in exceptional circumstances.

(3)In subsection (1)—

publish means disseminate to the public by radio or television or otherwise by the transmission of light or sound.

relevant court means the court presiding at the proceeding or preliminary hearing at which the recording is made or the court of trial or appeal at which the recording is presented.

Subdivision 3 Destruction of recordings

21AZD Relationship with other Acts

This subdivision applies despite the provisions of any other Act to the contrary.

21AZE Making of practice directions authorising destruction

(1)The Chief Justice may make a practice direction authorising the principal registrar of the Supreme Court to destroy a recording held by or for the Supreme Court.

(2)The Chief Judge may make a practice direction authorising the principal registrar of the District Court to destroy a recording held by or for the District Court.

(3)The Chief Magistrate may make a practice direction authorising the principal registrar of Magistrates Courts to destroy a recording held by or for a Magistrates Court.

(4)A practice direction made under subsection (1), (2) or (3)—

(a)must state the period (the minimum retention period) during which a recording or class of recordings may not be destroyed under the practice direction; and

(b)may authorise the principal registrar of the court to destroy a recording only after—

(i)the minimum retention period stated for the recording has ended; and

(ii)if an order under section 21AZF has been made in relation to the recording—the authorised destruction day stated in the order has passed.

21AZF Court may make order about destruction

(1)The presiding judicial officer may make an order that a recording must not be destroyed before a stated day (the authorised destruction day).

(2)The authorised destruction day must be after the end of the minimum retention period for the recording.

21AZG Destruction of particular digital recordings

(1)The principal registrar of a court may destroy a recording held by the court if the recording—

(a)is a digital recording; and

(b)has been copied onto a separate data storage medium.

(2)Subsection (1) applies—

(a)even if a practice direction made under section 21AZE does not authorise the destruction of the recording; and

(b)despite any order made under section 21AZF in relation to the recording.

21AZH Delegation by principal registrar

(1)The principal registrar of a court may delegate to an appropriately qualified public service employee the principal registrar’s function under—

(a)a practice direction made under section 21AZE ; or

(b)section 21AZG .

(2)In this section—

function includes power.

Division 5 Witness identity protection

Subdivision 1 Preliminary

21BPurposes of div 5

The purposes of this division are—

(a)to facilitate, for law enforcement purposes, investigations in relation to criminal activity, including investigations extending beyond Queensland, by—

(i)providing for the protection of the identity of operatives; and

(ii)facilitating the recognition of witness identity protection certificates under corresponding laws; and

(b)to facilitate investigations by the CCC in relation to corruption by providing for the protection of the identity of operatives.

21CDefinitions for div 5

In this division—

assumed name, of an operative, see section 21G (1)(a)(i).

CCC means the Crime and Corruption Commission.

chief executive officer, of a law enforcement agency, means—

(a)for the CCC—the chairperson of the CCC; or

(b)for the police service—the commissioner of the police service.

conduct includes any act or omission.

convicted means found guilty, or having a plea of guilty accepted by a court, whether or not a conviction is recorded.

corresponding law means a law of another jurisdiction that is declared under a regulation to correspond to this division.

corresponding witness identity protection certificate means a certificate given under a corresponding law that corresponds to section 21F .

corruption see the Crime and Corruption Act 2001 , schedule 2 .

court name, for an operative in relation to a proceeding, means a name, other than the operative’s real name, or code used to identify the operative in the proceeding.

criminal activity means conduct that involves the commission of an offence by 1 or more persons.

investigation means an investigation in relation to—

(a)criminal activity, including an investigation extending beyond Queensland; or

(b)corruption.

jurisdiction means the Commonwealth or a State of the Commonwealth.

law enforcement agency means—

(a)the CCC; or

(b)the police service.

operative means a person who is or was—

(a)a covert operative under the Crime and Corruption Act 2001 , chapter 3 , part 6A ; or

(b)a participant in an authorised operation under the Police Powers and Responsibilities Act 2000 , chapter 11 ; or

(c)an authorised person under the Police Powers and Responsibilities Act 2000 , chapter 12 .

party, to a proceeding, means—

(a)for a criminal proceeding—the prosecutor and each accused person; or

(b)for a civil proceeding—each person who is a party to the proceeding; or

(c)for another proceeding—each person who has been given leave to appear in the proceeding.

relevant court, for a proceeding, means the entity before whom or which the proceeding is held or taken.

witness identity protection certificate means a certificate given under section 21F .

21DApplication of div 5 to lawyer of party to a proceeding

For this division—

(a)anything permitted to be done by a party to a proceeding may be done by the party’s lawyer; and

(b)any requirement to give something to, or notify, a party to a proceeding is satisfied by giving the thing to, or notifying, the party’s lawyer.

Subdivision 2 Witness identity protection certificates for operatives

21EApplication of sdiv 2

(1)This subdivision applies to a proceeding in which an operative is, or may be, required to give evidence obtained as an operative.

(2)To remove any doubt, it is declared that this subdivision does not affect the operation of the common law in relation to the protection of the identity of a person who is not an operative who gives or intends to give evidence in a proceeding.

21FGiving witness identity protection certificate

(1)The chief executive officer of a law enforcement agency may give a witness identity protection certificate for an operative of the agency in relation to a proceeding if—

(a)the operative is, or may be required, to give evidence in the proceeding; and

(b)the chief executive officer is satisfied on reasonable grounds that the disclosure in the proceeding of the operative’s identity or where the operative lives is likely to—

(i)endanger the safety of the operative or someone else; or

(ii)prejudice an investigation.

(2)The chief executive officer must make all reasonable enquiries to enable him or her to find out the information required to be included in the witness identity protection certificate under section 21G .

(3)A decision to give a witness identity protection certificate—

(a)is final; and

(b)can not be impeached for informality or want of form; and

(c)can not be appealed against, reviewed, called into question, quashed or invalidated in any court.

(4)Subsection (3) does not prevent a decision to give a witness identity protection certificate being called into question during a proceeding of a disciplinary nature against the person who made the decision.

21GForm of witness identity protection certificate

(1)A witness identity protection certificate for an operative of a law enforcement agency in relation to a proceeding must be in the approved form and state all of the following—

(a)if the operative—

(i)is known to a party to the proceeding or a party’s lawyer by a name other than the operative’s real name—that name (the assumed name); or

(ii)is not known to any party to the proceeding or any party’s lawyer by a name—the operative’s court name for the proceeding;

(b)the period the operative was involved in the investigation to which the proceeding relates;

(c)the name of the agency;

(d)the date of the certificate;

(e)a general description of the reasons for giving the certificate;

(f)whether the operative has been convicted of an offence, in Queensland or elsewhere, and, if so, particulars of each offence;

(g)whether a charge against the operative for an offence is outstanding, in Queensland or elsewhere, and, if so, particulars of each charge;

(h)if the operative is, or was, a law enforcement officer—

(i)whether the operative has been found guilty of professional misconduct and, if so, particulars of each finding; and

(ii)whether any allegation of professional misconduct against the operative is outstanding and, if so, particulars of each allegation;

(i)whether, to the knowledge of the person giving the certificate, a court has made any adverse comment about the operative’s credibility and, if so, particulars of the comment;

(j)whether, to the knowledge of the person giving the certificate, the operative has made a false representation when the truth was required and, if so, particulars of the representation;

(k)if there is anything else known to the person giving the certificate that may be relevant to the operative’s credibility—particulars of the thing.

(2)A witness identity protection certificate for an operative must not contain information that may allow the operative’s identity, or where the operative lives, to be revealed.

(3)For this section—

(a)a charge against a person for an offence is outstanding until the charge is finally dealt with in any of the following ways—

(i)the charge is withdrawn;

(ii)the charge is dismissed by a court;

(iii)the person is discharged by a court;

(iv)the person is acquitted or convicted of the offence by a court; and

(b)an allegation of professional misconduct against a person is outstanding if the allegation has not been finally dealt with.

(4)The Criminal Law (Rehabilitation of Offenders) Act 1986 does not apply to the disclosure of information under subsection (1)(f) or (g).

(5)In this section—

charge, for an offence, means a charge in any form, including, for example, the following—

(a)a charge on an arrest;

(b)a notice to appear served under the Police Powers and Responsibilities Act 2000 , section 382 ;

(c)a complaint under the Justices Act 1886 ;

(d)a charge by a court under the Justices Act 1886 , section 42 (1A) , or another provision of an Act;

(e)an indictment.

false representation does not include a representation made under—

(a)an authority, or a corresponding authority, under the Police Powers and Responsibilities Act 2000 , chapter 11 or 12; or

(b)an approval under the Crime and Corruption Act 2001 , chapter 3 , part 6A .

law enforcement officer means—

(a)a commission officer under the Crime and Corruption Act 2001 ; or

(b)a police officer.

professional misconduct means—

(a)corruption under the Crime and Corruption Act 2001 ; or

(b)misconduct or a breach of discipline under—

(i)the Police Service Administration Act 1990 ; or

(ii)a law of another jurisdiction, or a foreign country, that corresponds to the Police Service Administration Act 1990 .

21HFiling and notification

(1)If the chief executive officer of a law enforcement agency gives a witness identity protection certificate for an operative in relation to a proceeding, the agency must—

(a)file the certificate with the relevant court for the proceeding before the operative gives evidence in the proceeding; and

(b)if the agency is the police service—give to the chairperson of the CCC a copy of the certificate and notice of the date it was filed.

(2)Also, the law enforcement agency must give a copy of the witness identity protection certificate to each party to the proceeding at least 14 days, or the shorter period agreed to by a party, before the day the operative is to give evidence.

(3)The relevant court may order the law enforcement agency to give a copy of the witness identity protection certificate to someone else stated in the order.

21IEffect of witness identity protection certificate

(1)This section applies if—

(a)a witness identity protection certificate for an operative in relation to a proceeding is filed under section 21H (1)(a); and

(b)either—

(i)a copy of the certificate is given to each party under section 21H (2) and to each person, if any, stated in an order under section 21H (3) for the certificate; or

(ii)the relevant court for the proceeding gives leave for this section to apply despite noncompliance with section 21H (2) or (3).

(2)If this section applies—

(a)the operative may give evidence in the proceeding under the assumed name, or court name, stated in the certificate; and

(b)subject to section 21K —

(i)a question must not be asked of a witness, including the operative, that may lead to the disclosure of the operative’s identity or where the operative lives; and

(ii)a witness, including the operative, can not be required to, and must not, answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives; and

(iii)a person involved in the proceeding must not make a statement that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives.

(3)For this section, a person involved in a proceeding includes the following—

(a)the relevant court;

(b)a party to the proceeding;

(c)a person given leave to be heard or make submissions in the proceeding;

(d)a lawyer representing a person mentioned in paragraph (b) or (c) or a lawyer assisting the court in the proceeding;

(e)any other officer of the court or person assisting the court in the proceeding;

(f)a person acting in the execution of any process or the enforcement of any order in the proceeding.

21JOrders to protect operative’s identity etc.

(1)The court with which a witness identity protection certificate is filed may make any order it considers necessary or desirable—

(a)to protect the identity of the operative for whom the certificate is given; or

(b)to prevent the disclosure of where the operative lives.

Examples of orders—

•an order prohibiting sketching of the operative

•an order that the operative give evidence in the absence of the public

(2)A person commits an offence if—

(a)the person knows that, or is reckless as to whether, an order has been made under subsection (1); and

(b)the person intentionally, knowingly or recklessly contravenes the order.

Maximum penalty—2 years imprisonment.

(3)Subsection (2) does not limit the court’s power to punish for contempt.

21KDisclosure of operative’s identity etc. despite certificate

(1)This section applies if a witness identity protection certificate for an operative in relation to a proceeding is filed with a court.

(2)A party to the proceeding, or a lawyer assisting the court in the proceeding, may apply to the court—

(a)for leave—

(i)to ask a question of a witness, including the operative, that may lead to the disclosure of the operative’s identity or where the operative lives; or

(ii)for a person involved in the proceeding to make a statement that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives; or

(b)for an order requiring a witness, including the operative, to answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives.

(3)The court may—

(a)give leave for the party or lawyer to do anything mentioned in subsection (2)(a); or

(b)make an order requiring a witness to do anything mentioned in subsection (2)(b).

(4)However, the court must not give leave or make an order unless satisfied about each of the following—

(a)there is evidence that, if accepted, would substantially call into question the operative’s credibility;

(b)it would be impractical to test properly the credibility of the operative without allowing the risk of disclosure of, or disclosing, the operative’s identity or where the operative lives;

(c)it is in the interests of justice for the operative’s credibility to be able to be tested.

(5)If there is a jury in the proceeding, the application must be heard in the absence of the jury.

(6)Unless the court considers that the interests of justice require otherwise, the court must be closed when—

(a)the application is made; and

(b)if leave is given or an order is made—the question is asked and answered, the evidence is given, the information is provided or the statement is made.

(7)The court must make an order suppressing the publication of anything said when—

(a)the application is made; and

(b)if leave is given or an order is made—the question is asked and answered, the evidence is given, the information is provided or the statement is made.

(8)Nothing in subsection (7) prevents the taking of a transcript of court proceedings, but the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.

(9)The court may make any other order it considers appropriate to protect the operative’s identity or to prevent the disclosure of where the operative lives.

(10)A person commits an offence if—

(a)the person knows that, or is reckless as to whether, an order has been made under subsection (7), (8) or (9); and

(b)the person intentionally, knowingly or recklessly contravenes the order.

Maximum penalty—2 years imprisonment.

(11)Subsection (10) does not limit the court’s power to punish for contempt.

21KADirections to jury

(1)This section applies if—

(a)a witness identity protection certificate for an operative in relation to a proceeding is filed with a court; and

(b)there is a jury in the proceeding; and

(c)the operative gives evidence.

(2)The court must, unless it considers it inappropriate, direct the jury not to give the operative’s evidence any more or less weight, or draw any adverse inferences against the defendant or another party to the proceeding, because—

(a)there is a witness identity protection certificate for the operative; or

(b)the court has made an order under section 21J or section 21K (7), (8) or (9).

21KBWitness identity protection certificate—cancellation

(1)This section applies if the chief executive officer of a law enforcement agency gives a witness identity protection certificate for an operative of the agency in relation to a proceeding.

(2)The chief executive officer must cancel the witness identity protection certificate if the chief executive officer considers that it is no longer necessary or appropriate to prevent the disclosure of the operative’s identity or where the operative lives.

(3)If the chief executive officer cancels the certificate after it has been filed with a court, the chief executive officer must immediately give written notice of the cancellation to the court and each party to the proceeding.

21KCPermission to give information disclosing operative’s identity etc.

(1)This section applies if the chief executive officer of a law enforcement agency gives a witness identity protection certificate for an operative of the agency in relation to a proceeding.

(2)The chief executive officer may, in writing, permit a person to give information, otherwise than in the proceeding, that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives if the chief executive officer considers it necessary or appropriate for the information to be given.

(3)The permission must state—

(a)the name of the person who may give the information; and

(b)the name of the person to whom the information may be given; and

(c)the information that may be given.

(4)The permission also may state how the information may be given.

21KDDisclosure offences

(1)A person commits an offence if—

(a)a witness identity protection certificate for an operative in relation to a proceeding has been given; and

(b)the person knows that, or is reckless as to whether, the certificate has been given; and

(c)the person intentionally, knowingly or recklessly does something (the disclosure action) that discloses, or is likely to lead to the disclosure of, the operative’s identity or where the operative lives; and

(d)the person knows that, or is reckless as to whether, the certificate had not been cancelled under section 21KB before the person does the disclosure action; and

(e)the person knows that, or is reckless as to whether, the disclosure action is not—

(i)authorised by leave or an order under section 21K ; or

(ii)permitted under section 21KC .

Maximum penalty—2 years imprisonment.

(2)A person commits a crime if the person commits an offence against subsection (1) in circumstances in which the person—

(a)intends to endanger the health or safety of any person or prejudice the effective conduct of an investigation; or

(b)knows that, or is reckless as to whether, the disclosure action—

(i)endangers or will endanger the health or safety of any person; or

(ii)prejudices or will prejudice the effective conduct of an investigation.

Maximum penalty—10 years imprisonment.

21KEReview of giving of witness identity protection certificate by police service

(1)This section applies to a witness identity protection certificate filed with a court by the police service.

(2)As soon as practicable after the end of the proceeding in which the witness identity protection certificate is filed by the police service, the commissioner of the police service must give the chairperson of the CCC notice of the date the proceeding to which the certificate relates ended.

(3)The chairperson of the CCC must—

(a)review the giving of the witness identity protection certificate as soon as practicable after the end of the proceeding to which the certificate relates and, in any event, within 3 months after the end of the year in which the certificate is filed; and

(b)consider whether, in the circumstances, it was appropriate to give the certificate; and

(c)if the chairperson considers it was inappropriate to give the certificate, notify whichever of the following is relevant of that fact as soon as practicable—

(i)each party to the proceeding;

(ii)a lawyer assisting the court.

(4)The commissioner of the police service, if asked by the chairperson of the CCC, must give the chairperson—

(a)all the information the police service used for deciding to give the witness identity protection certificate; and

(b)particulars relating to each person to whom a copy of the certificate was given under section 21H (2) or (3).

(5)The chairperson of the CCC must give a copy of any report on the review to the commissioner of the police service as soon as practicable after the report is completed.

21KFGiving information about witness identity protection certificates

(1)As soon as practicable after the end of each financial year, the chief executive officer of a law enforcement agency, other than the CCC, must give to the chairperson of the CCC a written report containing all of the following information for the financial year—

(a)the number of witness identity protection certificates given by the chief executive officer;

(b)the basis on which the chief executive officer was satisfied about the matters mentioned in section 21F (1)(b) for each certificate;

(c)if leave was given or an order made under section 21K in a proceeding in which a witness identity protection certificate for an operative of the agency was filed—details of the proceeding that relate to the leave or order;

(d)if a witness identity protection certificate was cancelled under section 21KB —the reasons for the cancellation;

(e)if a permission was given under section 21KC —the reasons for giving the permission;

(f)any other information relating to witness identity protection certificates and the administration of this division that the chairperson of the CCC considers appropriate.

(2)The report must not include information that discloses, or may lead to the disclosure of, an operative’s identity, or where the operative lives, unless the witness identity protection certificate for the operative has been cancelled.

21KGReport about witness identity protection certificates

(1)The CCC must include in its annual report for a financial year the following information about witness identity protection certificates given under this division in the financial year—

(a)the number of witness identity protection certificates given by each chief executive officer;

(b)the basis on which the chief executive officer was satisfied about the matters mentioned in section 21F (1)(b) for each certificate;

(c)if leave was given or an order made under section 21K in a proceeding in which a witness identity protection certificate was filed—details of the proceeding that relate to the leave or order;

(d)if a witness identity protection certificate was cancelled under section 21KB —the reasons for the cancellation;

(e)if a permission was given under section 21KC —the reasons for giving the permission;

(f)any other information relating to witness identity protection certificates and the administration of this division that the chairperson of the CCC considers appropriate.

(2)The annual report must not include information that discloses, or may lead to the disclosure of, an operative’s identity, or where the operative lives, unless the witness identity protection certificate for the operative has been cancelled.

(3)In this section—

annual report, of the CCC, means the report given by the CCC under the Financial Accountability Act 2009 , section 63 .

21KHRecognition of witness identity protection certificates under corresponding laws

Sections 21H to 21KA and section 21KD apply, with any necessary changes, to a corresponding witness identity protection certificate as if it were a witness identity protection certificate given under section 21F .

Subdivision 3 General

21KIDelegation

(1)Other than as provided by this section, and despite any other Act or law to the contrary, the powers of a chief executive officer under this division may not be delegated to any other person.

(2)A chief executive officer of a law enforcement agency may delegate any of the chief executive officer’s powers under this division, other than this power of delegation, to a senior officer of the agency.

(3)In this section—

senior officer, of a law enforcement agency, means—

(a)for the police service—a deputy commissioner of the police service; or

(b)for the CCC—a senior executive officer under the Crime and Corruption Act 2001 .

Division 6 Cross-examination of protected witnesses

21LApplication of division 6

This division applies only to criminal proceedings, other than summary proceedings under the Justices Act 1886 .

21MMeaning of protected witness

(1)For this division, each of the following persons is a protected witness—

(a)a witness under 16 years;

(b)a witness who is a person with an impairment of the mind;

(c)for a proceeding for a prescribed special offence, an alleged victim of the offence;

(d)for a proceeding for a prescribed offence, an alleged victim of the offence who the court considers would be likely to be disadvantaged as a witness, or to suffer severe emotional trauma, unless treated as a protected witness.

(2)It does not matter whether the proceeding mentioned in subsection (1)(c) or (d) relates also to another offence that is not a prescribed special offence or a prescribed offence.

(3)In this section—

alleged victim of an offence means a person, other than the person charged, who is—

(a)alleged to be a person in relation to whom the offence was committed; or

(b)alleged to have been subject to violence in relation to the offence.

prescribed offence means an offence defined in the Criminal Code , section 75, 122 , 127, 206, 308, 309, 323, 335, 338A, 339, 340, 346, 354, 354A, 355, 359, 413, 414, 415, 417A or 419.

prescribed special offence means an offence defined in the Criminal Code , section 210 , 213, 215, 216, 217, 218, 219, 221, 222, 227, 229B, 306, 313, 315, 315A, 316, 317, 320, 320A, 322, 323A, 323B, 359E, 363, 363A, 364, 409 or 412 or chapter 32.

violence means—

(a)an assault on, or injury to, a person; or

(b)a threat of an assault on, or an injury to, a person.

21NNo cross-examination of protected witness by person charged

A person charged may not cross-examine a protected witness in person.

21OProcedure for cross-examination of protected witness if person charged has no legal representative

(1)This section applies if—

(a)a person charged does not have a legal representative for a proceeding; and

(b)the court rules that a person is a protected witness for the proceeding.

(2)The court must advise the person charged present before the court that—

(a)the person charged may not cross-examine the protected witness in person; and

(b)the court will arrange for the person charged to be given free legal assistance by Legal Aid for the cross-examination unless the person charged—

(i)arranges for legal representation; or

(ii)does not want the protected witness to be cross-examined.

(3)The court must also require the person charged to advise the court by a particular date or time the court considers reasonable if the person charged—

(a)has arranged for a legal representative to act for the person charged for the proceeding; or

(b)has arranged for a legal representative to act for the person charged for cross-examination of the protected witness; or

(c)does not want the protected witness to be cross-examined.

(4)If, by the particular date or time, the court has not received advice from the person charged under subsection (3) that the person charged has arranged for a legal representative or does not want the protected witness cross-examined, the court must make an order that the person charged be given free legal assistance by Legal Aid for the cross-examination of the protected witness by a lawyer.

21PLegal assistance for cross-examination of protected witness

If a person charged is given legal assistance by Legal Aid because of an order under section 21O (4), the lawyer who cross-examines the protected witness for the person charged is the person’s legal representative for the purposes only of the cross-examination.

21QSatisfaction of Criminal Code , section 616

(1)This section applies if a person charged who does not have a legal representative for the cross-examination of a protected witness refuses legal assistance, available because of an order under section 21O (4), to cross-examine the witness.

(2)The Criminal Code , section 616 is taken to have been satisfied for the person charged in relation to cross-examination of the witness despite the person charged being unable to cross-examine the witness because of section 21N .

21RJury direction

(1)This section applies if there is a jury and a person charged—

(a)does not have a legal representative other than for the cross-examination of a protected witness; or

(b)does not have a legal representative for the cross-examination of a protected witness.

(2)The court must give the jury any warning the court considers necessary to ensure the person charged is not prejudiced by any inference that might be drawn from the fact the person charged has been prevented from cross-examining the protected witness in person.

21SOrders, directions and rulings concerning protected witnesses

The court may make any orders or give any directions or rulings it considers appropriate for the purposes of this division on the court’s own initiative or on an application made to the court by a party to the proceeding.

Part 3 Means of obtaining evidence

Division 1 Commissions, requests and orders to examine witnesses

22Commission, request or order to examine witnesses

(1)The Supreme Court or a judge thereof, on application made under the Rules of the Supreme Court, shall have the same powers to issue a commission, request or order to examine witnesses for the purpose of civil proceedings in any court other than the Supreme Court as it or the judge has for the purpose of civil proceedings in the Supreme Court.

(2)The Rules of the Supreme Court, with such adaptations as the circumstances may require, shall apply and extend to a commission, request or order to examine witnesses issued by authority of subsection (1) and to all proceedings taken thereunder as if the commission, request or order were issued by authority of those rules.

(3)Subject to all just exceptions, the depositions taken upon the examination of a witness before an examiner by virtue of this section certified under the hand of the examiner are admissible in evidence, without proof of the signature to such certificate, unless it is proved that the witness is at the time of the hearing at which the depositions are offered in evidence within a convenient distance of the place of the hearing and able to attend.

(4)The costs of proceedings taken by virtue of this section shall be costs in the cause, unless otherwise directed either by the judge issuing the commission, request or order or by the court for the purpose of whose proceedings the examination is conducted.

23Commission or order in criminal cases

(1)In any criminal proceeding, if any witness is out of the jurisdiction of the Supreme Court or more than 400km from the intended place of trial or is from age or infirmity unable to attend the trial or if the testimony of any witness is in danger of being lost by reason of the age or infirmity of the witness or by reason of the witness being about to depart out of the jurisdiction or to some place beyond the said distance of 400km, the Supreme Court or a judge thereof may, on the application or with the consent of the Attorney-General or the Crown prosecutor as well as the person charged, but not otherwise, order—

(a)that any such witness within the jurisdiction of the Supreme Court be examined on oath, either viva voce or upon interrogatories or otherwise, before a specified officer of the court or other specified person; or

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

(2)The Supreme Court or a judge thereof may, at the same time or subsequently, 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 appear reasonable and just.

(3)Subject to all just exceptions, the depositions taken upon the examination of a witness before an examiner by virtue of this section certified under the hand of the examiner are admissible in evidence, without proof of the signature to such certificate, unless it is proved that the witness is at the time of the hearing at which the depositions are offered in evidence within a convenient distance of the place of the hearing and able to attend.

(4)Any person authorised by any order or commission under this section to take the examination of any witness shall take such examination upon the oath of such witness and may administer the necessary oaths to such witness.

24Power of person appointed by foreign authority to take evidence and administer oaths

(1)Subject to subsections (2) to (4), where an authority desires to take or receive evidence in Queensland, that authority may appoint a person to take or receive evidence in Queensland and a person so appointed has power to take or receive evidence in Queensland for that authority and for that purpose to administer an oath.

(2)Where the 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 Queensland unless the person has first obtained the consent of the Attorney-General.

(3)This section does not authorise the taking or receiving of evidence by a person so appointed in or for use in criminal proceedings.

(4)In this section—

authority means any court, judge, or person who, or body which, is authorised under the law of a place outside Queensland to take or receive evidence on oath or under any other sanction authorised by law in that place.

Division 2 Summary procedure to obtain evidence for Queensland or other jurisdictions

25Definitions for div 2

In this division—

corresponding court—

(a)in relation to a court or person acting judicially in a prescribed country—means the court or person acting judicially in Queensland declared by regulation to be the court or person in Queensland that corresponds to that court or person in the prescribed country; and

(b)in relation to a court or person acting judicially in Queensland—means the court or person acting judicially in a prescribed country declared by regulation to be the court or person in a prescribed country that corresponds to that court or person in Queensland.

examiner means a judge, magistrate, clerk of a Magistrates Court or any duly qualified legal practitioner.

prescribed country means any State or Territory of the Commonwealth, New Zealand and any other State, Territory or country that is declared by regulation to be a prescribed country for the purposes of this division.

26Power of Queensland court to request corresponding court in a prescribed country to take evidence for use in Queensland court

(1)Where a court or person acting judicially in Queensland is authorised by or under any Act or law to authorise or order evidence to be taken otherwise than at the hearing of the legal proceedings in respect of which the evidence is required, that court or person may on the application of a person who desires to lead evidence, if it or the person is satisfied that it is necessary in the interests of justice, request a corresponding court to order the examination of a witness or the production of documents by a person or both such examination and production.

(2)Any deposition received from a corresponding court which purports to have been signed by the deponent and the examiner or to have been certified as a correct record by the examiner may, subject to all just exceptions, be put in as evidence at the hearing of the legal proceedings and any documents received from a corresponding court may, subject to all just exceptions, be put in at the hearing as if produced at the hearing by the person who produced the documents pursuant to the order of the corresponding court.

(3)A court or person acting judicially shall take judicial notice of the seal of a corresponding court and of the signature of any examiner appointed by a corresponding court.

27Power to take evidence on request from corresponding court of a prescribed country

(1)Where by or under any Act or law of a prescribed country provision is made for the evidence of any person that is required in connection with any legal proceedings to be taken otherwise than at the hearing of those proceedings by a court or person acting judicially, a court or person acting judicially in Queensland that is a corresponding court to a court or person acting judicially in the prescribed country before which or whom legal proceedings are being held may, upon receipt of a request in writing from that court or person in the prescribed country, make an order for the examination of a witness and the production of documents by a person or both for such examination or production before an examiner named in the order at a time and place specified in the order.

(2)The order shall require reasonable notice to be given by post to each party to the legal proceedings at the party’s address as shown in the request of the time when and place where the examination is to take place or the documents are to be produced.

28Summons of witnesses

Upon service on a person of an order requiring the person to attend for examination or to produce documents, together with the payment or tender of a reasonable sum for expenses, the person shall attend at the time and place appointed and shall have and be subject to the same rights and liabilities as if the person were summoned before the court or person by which or whom the order was made.

29Examination

(1)Subject to any directions contained in the order for examination—

(a)a person ordered to be examined before the examiner may be cross-examined and re-examined; and

(b)the examination, cross-examination and re-examination of persons before the examiner shall be conducted in like manner as they would have been conducted before the court or person acting judicially who made the order for the examination.

(2)The examiner may put any question to a person examined before the examiner as to the meaning of any answer made by that person or as to any matter arising in the course of the examination.

(3)An examiner shall have and may exercise such of the powers of the court or person acting judicially by whom the examiner was appointed as are necessary for the proper exercise of the examiner’s functions under this division and may administer oaths and adjourn the examination from time to time as the examiner thinks fit.

30Objections

(1)If a person being examined before an examiner objects to answering any question put to the person, or if objection is taken to any such question that question, the ground for the objection and the answer to any such question to which objection is taken shall be set out in the deposition of that person or any statement annexed thereto.

(2)The validity of the ground for objecting to answer any such question or for objecting to such question shall not be determined by the examiner but by the corresponding court at whose request the examination is being conducted.

31Depositions to be signed

(1)Where pursuant to an order for examination—

(a)a witness has given evidence to the examiner, the depositions of the witness shall be signed by the witness and by the examiner or where the witness refuses to sign or requires alterations that the examiner considers to be unjustified the depositions shall be signed by the examiner who shall certify that the depositions are a correct record and the reasons for them not being signed by the witness;

(b)documents have been produced to the examiner by a person not giving evidence, the examiner shall attach to such documents a certificate signed by the examiner stating the name of that person.

(2)All depositions and documents taken before or produced to the examiner pursuant to any such order shall be delivered by the examiner to the court or person by which or whom the order was made for transmission to the corresponding court.

32Power of Queensland court to transmit requests to other places

Where a court or person acting judicially in Queensland receives a request from a corresponding court for the examination of a witness or the production of documents by a person and it appears to the court or person acting judicially that the witness or person is not in Queensland and is not proceeding to Queensland but is in or proceeding to another country that is a prescribed country under the law of the country of the corresponding court the court—

(a)may transmit the request to a corresponding court in that other prescribed country together with such information as it or the person possesses concerning the whereabouts and intended movements of the person;

(b)shall give notice to the corresponding court from which it received the request that the documents have been so transmitted.

33Saving as to personal attendance

Nothing in this division limits or abridges the power of a court or a person acting judicially to require a witness to attend in person before the court or person.

Division 3 General procedure to obtain evidence for other jurisdictions

35Definitions for div 3

In this division—

civil proceedings, in relation to a requesting court, means proceedings in any civil or commercial matter.

overseas country means a country, or part of a country, outside the Commonwealth.

request includes any commission, order or other process issued by or on behalf of a requesting court.

requesting court has the meaning given to it in section 36 .

35AApplication of division to Crown

Nothing in this division shall be construed as enabling any court to make an order that is binding on the Crown or on any person in the person’s capacity as an officer or servant of the Crown.

36Application to Supreme Court to obtain evidence for civil proceedings in another jurisdiction

Where an application by way of originating summons is made to the Supreme Court or a judge thereof for an order for evidence to be obtained in the State, and the court or judge is satisfied—

(a)that the application is made in pursuance of a request issued by or on behalf of a court or tribunal (the requesting court) exercising jurisdiction in a State or Territory of the Commonwealth other than Queensland or in an overseas country; and

(b)that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated;

the court or judge shall have the powers conferred by the following provisions of this division.

37Power of Supreme Court to give effect to application to obtain evidence

(1)The Supreme Court or a judge thereof on an application under section 36 shall have power by order to make such provision for obtaining evidence in the State as may appear to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made, and any such order may require a person specified therein to take such steps as the court or judge may consider appropriate for that purpose.

(2)Without prejudice to the generality of subsection (1), an order under this section may 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.

(3)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 civil proceedings in the Supreme Court (whether or not proceedings of the same description as those to which the application for the order relates), but this subsection shall 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.

(4)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 or power; or

(b)to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in the person’s possession or power.

(5)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 as on attendance as a witness in civil proceedings before the Supreme Court.

(6)An order under this section may be enforced in the same manner as if it were an order made by the Supreme Court or a judge thereof in proceedings pending in the Supreme Court or before the judge.

38Privilege of witnesses

(1)A person shall not be compelled by virtue of an order under section 37 to give any evidence which the person could not be compelled to give—

(a)in civil proceedings in the State; or

(b)subject to subsection (2), in civil proceedings in the State or Territory of the Commonwealth or the overseas country in which the requesting court exercises jurisdiction.

(2)Subsection (1)(b) shall not apply unless the claim of the person in question to be exempt from giving the 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;

and where such a claim made by any person is not supported or conceded as aforesaid 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.

(3)In this section, references to giving evidence include references to answering any question and to producing any document and the reference in subsection (2) to the transmission of evidence given by a person shall be construed accordingly.

39Judicial proceedings for the purposes of the Criminal Code

Proceedings wherein a person gives or is required to give any testimony (either orally or in writing) pursuant to an order under section 37 shall be a judicial proceeding for the purposes of the Criminal Code , chapter 16 whether or not the testimony is given or required to be given on oath or under any other sanction authorised by law.

Part 3A Audio visual links and audio links

Division 1 Preliminary

39APurposes of pt 3A

The purposes of this part are—

(a)to provide for Queensland to participate in a substantially uniform interstate scheme for the taking or receiving of evidence, and the making or receiving of submissions, from or in participating States; and

(b)to facilitate the giving and receiving of evidence, and the making and receiving of submissions, in Queensland court proceedings, by audio visual link or audio link.

39BApplication of pt 3A

(1)This part applies to a proceeding whether commenced before or after the commencement of this part.

(2)This part does not limit any law of the State that makes provision for—

(a)the use of audio visual links or audio links; or

(b)the taking of evidence, or the making of submissions, in or outside the State for the purpose of a proceeding in the State.

(3)In particular, this part does not affect a prohibition under another Act on the making of an order about the use of an audio visual link or audio link without the consent of all parties to a proceeding.

(4)This part does not authorise a defendant in a criminal proceeding before a Queensland court to appear before, or give evidence or make a submission to the court by audio visual link or audio link unless expressly authorised by any of the following—

(a)the Criminal Code , section 597C (4);

(b)the District Court of Queensland Act 1967 , section 110C ;

(c)the Justices Act 1886 , section 178C ;

(d)the Penalties and Sentences Act 1992 , section 15A ;

(e)the Supreme Court of Queensland Act 1991 , section 80 ;

(f)the Youth Justice Act 1992 , section 53 or 159 .

39CDefinitions for pt 3A

In this part—

audio link means facilities, including telephone, that enable reasonably contemporaneous and continuous audio communication between persons at different places.

before, a court, includes in a court.

court location means the courtroom, or other place, where the court is sitting.

external location, for a court, means the location, external to the court location—

(a)in or outside Queensland or Australia from which evidence or a submission is being, is to be, or has been taken or made by audio visual link or audio link under this part; or

(b)for the application of this part under the Criminal Code , section 597C —at which an accused person is being, is to be, or has been arraigned; or

(c)for the application of this part under the Youth Justice Act 1992 , section 159 or the Penalties and Sentences Act 1992 , section 15A —at which an offender or a child is being, is to be, or has been sentenced.

participating State means another State in which provisions of an Act of that State in terms that substantially correspond to divisions 2 and 3 are in force.

Queensland court means—

(a)the Supreme Court, the District Court or a Magistrates Court; or

(b)the Coroners Court; or

(c)another court established under an Act; or

(d)another tribunal declared under a regulation to be a court for this part.

recognised court means a court or tribunal of a participating State that is authorised by the provisions of an Act of that State in terms substantially corresponding to divisions 2 and 3 to direct that evidence be taken or submissions be made by audio visual link or audio link from Queensland.

tribunal means a body or person that may take evidence on oath.

Division 2 Use of interstate audio visual links or audio links in proceedings before Queensland courts

39DApplication of div 2

This division applies to any proceeding, including a criminal proceeding, before a Queensland court.

39EState courts may take evidence and submissions from outside State

(1)The court may, on the court’s own initiative or on the application of a party to a proceeding before the court, direct that evidence be taken or submissions be made by audio visual link or audio link from a participating State.

Note—

See division 3A in relation to expert witnesses giving evidence by audio visual link or audio link.

(2)The court may exercise in the participating State, in connection with taking evidence or receiving submissions by audio visual link or audio link, any of its powers that the court may be permitted, under the law of the participating State, to exercise in the participating State.

39FLegal practitioners entitled to practise

A person who is entitled to practise as a legal practitioner in a participating State is entitled to practise as a barrister or solicitor or both in relation to the following—

(a)the examination-in-chief, cross-examination or re-examination of a witness in the participating State whose evidence is being given by audio visual link or audio link in a proceeding before the court;

(b)making of submissions by audio visual link or audio link from the participating State in a proceeding before the court.

Division 3 Use of interstate audio visual links or audio links in proceedings in participating States

39GApplication of div 3

This division applies to any proceeding, including a criminal proceeding, before a recognised court.

39HRecognised courts may take evidence or receive submissions from persons in Queensland

The court may, for a proceeding before it, take evidence or receive submissions, by audio visual link or audio link, from a person in Queensland.

39IPowers of recognised courts

(1)The court may, for the proceeding, exercise in Queensland, in connection with taking evidence or receiving submissions by audio visual link or audio link, any of its powers other than its powers—

(a)to punish for contempt; and

(b)to enforce or execute its judgments or process.

(2)The laws of the participating State, including rules of court, that apply to the proceeding in that State also apply to the practice and procedure of the court in taking evidence or receiving submissions by audio visual link or audio link from a person in Queensland.

(3)For the purposes of the court exercising its powers in Queensland, the external location in Queensland is taken to be part of the court location.

39JOrders made by recognised court

Without limiting section 39I , the court may, by order—

(a)direct that the proceeding, or a part of the proceeding, be conducted in private at the external location in Queensland; and

(b)require a person to leave the external location in Queensland; and

(c)prohibit or restrict the publication of evidence given in the proceeding or the name of a party to, or a witness in, the proceeding.

39KEnforcement of order

(1)An order under section 39J must be complied with.

(2)Subject to rules of court made under the Supreme Court of Queensland Act 1991 , the order may be enforced by the Supreme Court as if the order were an order of that court.

(3)Without limiting subsection (2), a person who contravenes the order—

(a)is taken to be in contempt of the Supreme Court; and

(b)is punishable accordingly;

unless the person establishes that the contravention should be excused.

39LPrivileges, protection and immunity of participants in proceedings before recognised court

(1)A judge or other person presiding at or otherwise taking part in a judicial capacity in the proceeding before the court has, in connection with evidence being taken or submissions being received by audio visual link or audio link from the external location in Queensland, the same privileges, protection and immunity as a Supreme Court judge.

(2)A person appearing as a legal practitioner in the proceeding before the court has, in connection with evidence being taken or submissions being received by audio visual link or audio link from the external location in Queensland, the same protection and immunity as a barrister appearing before the Supreme Court.

(3)A person at the external location in Queensland appearing as a witness in the proceeding before the court by audio visual link or audio link has the same protection and immunity as a witness in a proceeding before the Supreme Court.

39MRecognised court may administer oath in the State

(1)The court may administer an oath or affirmation in accordance with its practice and procedure for the purpose of obtaining the testimony of a person in Queensland by audio visual link or audio link in the proceeding.

(2)Evidence given on the oath or affirmation is taken to be given in a Queensland judicial proceeding for the purposes of Queensland law.

39NAssistance to recognised court

An officer of a Queensland court may, if asked by the recognised court, do any of the following things for the proceeding—

(a)attend at the external location in Queensland;

(b)take the action the recognised court directs to facilitate the proceeding;

(c)administer an oath or affirmation.

39OContempt of recognised court

A person must not, in connection with evidence or a submission that is to be, is being, or has been given or made at the external location in Queensland in the proceeding before the court, do any of the following things—

(a)assault, in Queensland—

(i)a witness in the proceeding; or

(ii)a person appearing in the proceeding as a legal practitioner; or

(iii)an officer of a Queensland court giving assistance under section 39N ;

(b)deliberately interrupt or obstruct the court;

(c)create or continue, or join in creating or continuing, a disturbance at the external location in Queensland;

(d)attempt to influence improperly anyone in connection with the proceeding;

(e)deliberately and without lawful excuse, disobey an order or direction given by the court to regulate conduct happening while evidence is being given or a submission is being made by audio visual link or audio link;

(f)do anything in connection with the proceeding that would be a contempt of court if the thing done were done in, or in relation to, a Queensland judicial proceeding.

Maximum penalty—imprisonment for 3 months.

39PDouble jeopardy

(1)This section applies to a person who does an act or makes an omission that is an offence both—

(a)under this part; and

(b)under a law of a participating State.

(2)The person must not be prosecuted or punished under this part for the offence if the person has been prosecuted or punished under the law of the participating State for the offence.

Division 3A Use of audio visual links or audio links for expert witnesses

39PAApplication of div 3A

This division applies to any proceeding, including a criminal proceeding, before a Queensland court.

39PBExpert witnesses to give evidence by audio visual link or audio link

(1)This section applies if a person is called to give evidence as an expert witness in the proceeding.

(2)Subject to subsection (3) and any rules of the court, the person is to give the evidence to the court by audio visual link or audio link.

(3)The court may, on its own initiative or on the application of a party to the proceeding, direct that the person is to give oral evidence to the court other than by audio visual link or audio link if the court is satisfied it is in the interests of justice to give the direction.

(4)In deciding whether it is in the interests of justice to give a direction under subsection (3), the court may have regard to the following matters—

(a)the nature and scope of the evidence the person is to give in the proceedings;

(b)whether the use of audio link or audio visual link is likely to affect the court’s or a jury’s ability to assess the credibility or reliability of the person or the person’s evidence;

(c)the availability of appropriate audio or audio visual facilities in the court to which the person is to give evidence;

(d)any submission made to the court by the person or any party to the proceedings about the way in which the person should give evidence.

(5)Subsection (4) does not limit the matters the court may have regard to in deciding whether it is in the interests of justice to make a direction under subsection (3).

(6)The court may, at any time, vary or revoke a direction made under this section on its own initiative or on the application of a party to the proceeding.

(7)The court must not give the person’s evidence any more or less weight, or draw any adverse inferences against a party to the proceeding, only because the person gave the evidence by audio visual link or audio link.

39PCDirection to jury if expert witness gives evidence by audio visual link or audio link

(1)This section applies if—

(a)a person gives evidence in the proceeding as an expert witness; and

(b)the evidence is given by audio visual link or audio link under section 39PB ; and

(c)there is a jury in the proceeding.

(2)The court must direct the jury not to give the person’s evidence any more or less weight, or draw any adverse inferences against a party to the proceeding, only because the person gave the evidence by audio visual link or audio link.

Division 4 General provisions about the use of audio visual links or audio links

39QApplication of div 4

(1)This division applies to any proceeding, including a criminal proceeding, before a Queensland court.

(2)This division does not limit, and is not limited by, division 2 , 3 or 3A.

39RQueensland courts may take evidence and submissions from external location

(1)Subject to any rules of the court, the court may, on the application of a party to the proceeding before the court, direct that a person appear before, or give evidence or make a submission to, the court by audio visual link or audio link from a location inside or outside Queensland, including a location outside Australia.

(2)The court may, at any time, vary or revoke a direction made under this section on its own initiative or on the application of a party to the proceeding.

Note—

See division 3A in relation to expert witnesses giving evidence by audio visual link or audio link.

39SFailure of the link

If an audio visual link or audio link fails in the proceeding, the court may adjourn the proceeding, or make another appropriate order, as if a person present at the external location were at the court location.

39TExpenses

The court may make the orders it considers just for payment of expenses incurred in connection with taking evidence or making submissions by audio visual link or audio link.

39UExternal location to be considered part of Queensland court location

(1)An external location in the proceeding before the court is taken to be part of the court location in the proceeding for all purposes relating to a Queensland law for the administration of justice.

(2)In this section—

a law for the administration of justice includes a law about any of the following—

(a)compulsory attendance at court;

(b)punishment for failing to attend at court;

(c)the presence of a person at court;

(d)evidence, including compellability to give evidence;

(e)perjury, contempt, procedure, privileges, protection or immunities.

law includes any written or unwritten law, and a rule, practice or procedure of the court.

39VWitness outside Queensland—when compellable

If the external location from which a witness giving evidence by audio visual link or audio link in the proceeding is outside Queensland, the witness is compellable to give evidence only to the extent the witness—

(a)would be compellable to give the evidence if present in Queensland; and

(b)would be compellable to give the evidence in court proceedings under the law of the place from which the evidence is given.

39WAdministration of oaths and affirmations

An oath or affirmation may be sworn for giving testimony by audio visual link or audio link—

(a)over the link in a way that is as near as practicable to the way the witness could be sworn at the court location; or

(b)by a person at the external location in accordance with the court’s direction.

39XTestimony from outside Australia other than on oath

(1)This section applies if the external location is in a country other than Australia and an oath is not allowed under the law of the country.

(2)The evidence may be given otherwise than on oath under a caution or admonition that would be accepted by a court in that country for the purpose of giving evidence in the court.

(3)The probative value of the evidence given under subsection (2) is not diminished merely because the evidence is not given on oath.

(4)A person giving the evidence under subsection (2) is liable to be convicted of perjury as if the evidence were given on oath.

39YPutting documents to a person at an external location

(1)If in the course of examination of a person by audio visual link or audio link it is necessary to put a document to the person, the court may permit the document to be put to the person—

(a)if the document is at the court location—by sending a copy of it to the external location in any way and the copy then put to the person; or

(b)if the document is at the external location—by putting it to the person and then sending it to the court location in any way.

(2)A document put to a person under subsection (1) is admissible as evidence without proof that the transmitted copy is a true copy of the relevant document.

39ZExtension of rule-making power

If there is a power under another Act to make rules for the court, the power includes a power to make rules, not inconsistent with this part, that are necessary or convenient for carrying out or giving effect to this part.

Part 4 Judicial notice of seals, signatures and legislative enactments

41Public Seal of the State

All courts shall take judicial notice of the impression of the Public Seal of the State without evidence of such seal having been impressed or any other evidence relating thereto.

42Signatures of holders of public offices etc. to be judicially noticed

(1)Judicial notice must be taken of—

(a)the signature of a person who is or has been the holder of a public office; and

(b)the fact that the person holds or has held the office.

(2)For subsection (1), the following offices are public offices—

(a)the office of Governor;

(b)the office of a Minister;

(c)the office of a judge, magistrate or warden;

(d)the office of an official of a court;

(e)the office of a justice of the peace or commissioner for declarations;

(f)another office of a public nature established under an Act;

(g)an office prescribed under an Act for this section.

(3)Schedule 1 provides examples of offices of a public nature established under an Act.

(4)This section is in addition to, and does not limit, the common law, another provision of this Act or a provision of another Act.

42ACertain seals to be judicially noticed etc.

(1)Judicial notice must be taken of the imprint of any seal of an office or entity established under an Act, and a document on which the imprint appears must be presumed to have been properly sealed unless the contrary is established.

(2)This section is in addition to, and does not limit, the common law, another provision of this Act or a provision of another Act.

43Acts and statutory instruments to be judicially noticed

Judicial notice must be taken of the following—

(a)every Act;

(b)every statutory instrument;

(c)the time when every Act or statutory instrument commenced, and every provision of every Act or statutory instrument commenced;

(d)when every Act was assented to;

(e)when and by whom every item of subordinate legislation was made, approved, confirmed or otherwise consented to;

(f)when and how every item of subordinate legislation was notified;

(g)when every item of subordinate legislation was laid before the Legislative Assembly;

(h)every official copy of Queensland legislation.

43AAdministrative arrangements to be judicially noticed

Judicial notice must be taken of the administrative arrangements set out in an order published in the gazette and purportedly made under the Constitution of Queensland 2001 , section 44 .

Part 5 Proof of documents and other matters

Division 1 Proof of official and judicial documents and matters

44Proof by purported certificate, document etc.

Where by a law in force in Queensland—

(a)a certificate; or

(b)an official or public document; or

(c)a document of a corporation; or

(d)a copy of, or extract from, a document;

is admissible in evidence for any purpose, a document purporting to be the certificate, document, copy or extract shall, unless the contrary intention appears, be admissible in evidence to the same extent and for the same purpose provided that it purports to be authenticated in the manner (if any) directed by that law.

45Proof of gazette

The production of a document purporting to be the gazette shall be evidence that the document is the gazette and was published on the day on which it bears date.

46Proof regarding government printer, parliamentary counsel and Legislative Assembly

(1)The production of a document purporting to be printed by the government printer or by the authority of the Government of the State is evidence the document was printed by the government printer or by that authority.

(2)The production of a document purporting to be authorised by the parliamentary counsel is evidence that the document was authorised by the parliamentary counsel.

(3)The production of a document purporting to be published under the authority of the Legislative Assembly is evidence the document was published under that authority.

46APresumption of accuracy of official copy of Queensland legislation

(1)An official copy of Queensland legislation is, in the absence of evidence to the contrary, taken to correctly show—

(a)for Queensland legislation other than a reprint—the legislation as at the relevant date; or

(b)for a reprint—the law in force included in the reprint as at the relevant date.

(2)The date of assent appearing in an official copy of an Act or a reprint of an Act is, in the absence of evidence to the contrary, evidence of the date of assent.

(3)A statement of any of the following matters appearing in an official copy of subordinate legislation or a reprint of subordinate legislation is, in the absence of evidence to the contrary, evidence of the matter—

(a)when and by whom the subordinate legislation was made;

(b)when and how the subordinate legislation was notified;

(c)when the subordinate legislation was laid before the Legislative Assembly;

(d)that the subordinate legislation was disallowed and the date of the disallowance.

(4)A document purporting to be a copy of, or extract from, an official copy of Queensland legislation is, in the absence of evidence to the contrary, taken to be a correct copy of, or extract from, the official copy.

(5)For an official copy of a reprint authorised under the Legislative Standards Act 1992 , section 10A , extract from the copy, for subsection (4), includes a document containing—

(a)1 or more pages of the copy; and

(b)a page of the copy containing the note mentioned in section 10A(2) of that Act.

(6)In this section—

made, for subordinate legislation, means made, approved, confirmed or otherwise consented to.

relevant date, for an official copy of Queensland legislation, means—

(a)for an Act as passed, or an agreement or other instrument in or attached to the Act —the day the Act was assented to; or

(b)for subordinate legislation as made, or an agreement or other instrument in or attached to the subordinate legislation—the day the subordinate legislation was made; or

(c)for an agreement or other instrument not mentioned in paragraph (a) or (b) that has not been amended—the day the agreement or other instrument came into the same force of law as an Act or subordinate legislation; or

(d)for a reprint—the day or days, however described or identified in the official copy, for which the law included in the copy is or was the law in force.

46BCourt or tribunal may inform itself about Act or statutory instrument

(1)A court or tribunal may inform itself about an Act or statutory instrument in any way it considers appropriate.

Examples of ways that may be appropriate—

1using an electronic version of an Act as available on the internet or on a CD–ROM other than a reprint of the Act authorised under the Legislative Standards Act 1992 , section 10A

2using a printed copy of an Act in a publication other than a reprint of the Act authorised under the Legislative Standards Act 1992 , section 10A

(2)However, the court or tribunal must consider whether the document or source it intends to consult appears to be a reliable source of information.

(3)Subsection (1) does not limit any law providing for a way in which a court or tribunal may be informed about an Act or statutory instrument, including any other provision of this Act or the Reprints Act 1992 .

47Proof of Legislative Assembly’s proceedings or legislative material

(1)A document purporting to be a copy of an official record of proceedings in the Legislative Assembly printed by the government printer or published under the authority of the Legislative Assembly is, on its production, evidence of the record.

Note—

See also the Parliament of Queensland Act 2001 , section 57 .

(2)A document purporting to be a copy of legislative material printed by the government printer, authorised by the parliamentary counsel or published under the authority of the Legislative Assembly is, on its production, evidence of the legislative material.

(3)In this section—

legislative material includes—

(a)a Bill, an amendment of a Bill or an explanatory note for a Bill, introduced into, moved in, tabled in, or circulated to members of, the Legislative Assembly; or

(b)an explanatory note or regulatory impact statement for subordinate legislation.

regulatory impact statement means a regulatory impact statement prepared under—

(a)the Statutory Instruments Act 1992 , part 5 as in force from time to time before its repeal by the Fiscal Repair Amendment Act 2012 ; or

(b)guidelines, for a regulatory impact statement system, approved by the Treasurer.

48Proof of particular instruments

(1)This section applies to an instrument made—

(a)by the Governor or Governor in Council; or

(b)by or under the authority of a Minister or of a public entity.

(2)Evidence of the instrument may be given by producing any of the following documents—

(a)the gazette purporting to contain it;

(b)a document purporting to be a copy of it and purporting to be printed by or under the authority of the government printer;

(c)for an instrument made by the Governor or Governor in Council—a copy or extract purporting to be certified as a true copy or extract by the clerk of the Executive Council;

(d)for an instrument made by or under the authority of a Minister—a copy or extract purporting to be certified as a true copy or extract by a Minister.

(3)If the document states any of the following matters about the instrument, the document is evidence of the matter—

(a)who made it, or under whose authority it was made;

(b)when it was made;

(c)how it, or notice of its making, was published, and when;

(d)when it was tabled in the Legislative Assembly.

(4)In this section—

made means made, approved, confirmed or otherwise consented to.

public entity means an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or under State authorisation for a public or State purpose.

49Proof of standard rules, codes and specifications

If an Act or statutory instrument adopts by way of reference, wholly or in part, any of the standard rules, codes or specifications of the bodies known as the Standards Association of Australia, Standards Australia, the British Standards Institution or other body expressly or impliedly identified in the Act , evidence of any such standard rule, code or specification may be given—

(a)by the production of a document purporting to be a copy of it and purporting to be published by or on behalf of the Standards Association of Australia, Standards Australia, the British Standards Institution or other body concerned; or

(b)by the production of a document purporting to be a copy of it and purporting to be printed by the government printer or by the authority of the Government of the State.

50Proof of act done by Governor or Minister

Where by any law at any time in force the Governor or the Governor in Council or a Minister is authorised 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 such act having been duly done.

51Proof of public documents

Where a document is of such a public nature as to be admissible in evidence on its mere production from proper custody, a copy of or extract from the document shall be admissible in evidence if—

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

(b)it purports to be certified as a true copy or extract under the hand of a person described in the certificate as the person to whose custody the original is entrusted.

52Proof of registers of British vessels etc.

(1)Every register of a vessel kept under any of the Act s relating to the registry of British vessels may be proved by the production of—

(a)the original; or

(b)an examined copy of the original; or

(c)a copy purporting to be certified as a true copy under the hand of the person having the charge of the original.

(2)A person having the charge of the original of such register is required to furnish such certified copy to any person applying at a reasonable time for the same upon payment of such fee (if any) as is prescribed by law.

(3)Every—

(a)such register or such copy of a register; and

(b)certificate of registry granted under any of the said Acts relating to the registry of British vessels and purporting to be signed as required by law;

shall be admissible in evidence of—

(c)all the matters contained or recited in such register when the register or such copy of the register is produced; and

(d)all the matters contained recited in or endorsed on such certificate of registry when the said certificate is produced.

53Proof of judicial proceedings

(1)Where it is sought to prove any of the following matters—

(a)a judgment, decree, rule, conviction, acquittal, sentence or other order, process, act or decision of any court;

(b)an affidavit, pleading, will, codicil, indictment or other legal document filed, deposited or presented in any court;

(c)the pendency or existence at any time before any court of any proceeding;

evidence of such matter and, as the case may be, of any particulars relating thereto may be given by the production of—

(d)the original of the order, process, act, decision or document; or

(e)a document proved to be an examined copy of the order, process, act, decision or document; or

(f)a document purporting to be a copy of the order, process, act, decision or document and to be sealed with the seal of the court; or

(g)a certificate showing such matter and such particulars and purporting to be under the hand of—

(i)a registrar of the court; or

(ii)a person having the custody of the records or documents of the court; or

(iii)any other proper officer of the court; or

(iv)a deputy of such registrar, person or officer.

(2)In this section—

court means any court of Queensland, of the Commonwealth or of any other State or Territory.

54Proof of identity of a person convicted

(1)If a person (the alleged offender) is alleged to have been convicted in Queensland, the Commonwealth or another State or Territory of an offence, an affidavit that complies with subsection (2) is proof, unless the contrary is proved, the alleged offender—

(a)has been convicted of an offence stated in the affidavit under subsection (2)(c)(iii); and

(b)is the person who is referred to as having been convicted in a certificate of conviction exhibited to the affidavit under subsection (2)(b).

(2)The affidavit must—

(a)purport to be made by an expert; and

(b)exhibit a certificate of conviction for the offence the alleged offender is alleged to have been convicted of; and

(c)state the following—

(i)the expert’s field of expertise;

(ii)the process and evidence used by the expert to determine the identity of the alleged offender based on available identifying records;

(iii)any offence that, based on the results of the expert’s determination mentioned in subparagraph (ii), a police record states the alleged offender has been convicted of;

(iv)that, based on the results of the expert’s determination mentioned in subparagraph (ii), and the police record mentioned in subparagraph (iii), the expert believes that the alleged offender is the person who is referred to as having been convicted in the certificate of conviction exhibited to the affidavit under subsection (2)(b).

(3)If a party to a proceeding intends to rely on the affidavit (the relying party), the party must give a copy of the affidavit to each other party to the proceeding—

(a)at least 10 business days before the hearing day; or

(b)if, in the particular circumstances, the court considers it just to shorten the period mentioned in paragraph (a)—by a later date allowed by the court.

(4)If a party to the proceeding, other than the relying party, intends to challenge a matter stated in the affidavit, the party must give the relying party notice in writing of the matter to be challenged—

(a)at least 3 business days before the hearing day; or

(b)if subsection (3)(b) applies and, in the particular circumstances, the court considers it just to shorten the period mentioned in paragraph (a)—by a later date allowed by the court.

(5)If a party to the proceeding (the notifying party) gives the relying party a notice under subsection (4), then, unless the notifying party otherwise agrees, the relying party must ensure that the expert is available at the hearing of the proceeding for cross-examination on the affidavit.

(6)In this section—

certificate of conviction, for an offence, means a document purporting to be the certificate of conviction, or a certified copy of the certificate of conviction, for the offence.

corresponding law, in relation to a provision of a Queensland law, means a law of the Commonwealth or another State or Territory corresponding, or substantially corresponding, to the provision.

DNA sample see the Police Powers and Responsibilities Act 2000 , schedule 6 .

expert means a person who is qualified to give opinion evidence as an expert witness in relation to the identity of a person based on the type of identifying records used by the expert to determine the identity of the alleged offender under subsection (2)(c)(ii).

hearing day means the day fixed for the start of the hearing of the proceeding.

identifying particulars see the Police Powers and Responsibilities Act 2000 , schedule 6 .

identifying records, of a person, means—

(a)any identifying particulars of the person taken under the Police Powers and Responsibilities Act 2000 , chapter 17 , part 4 or a corresponding law; or

(b)the results of a DNA analysis performed, under the Police Powers and Responsibilities Act 2000 , chapter 17 , part 5 or a corresponding law, on a DNA sample taken from the person under that part or a corresponding law; or

(c)a DNA sample taken from the person under the Police Powers and Responsibilities Act 2000 , chapter 17 , part 5 or a corresponding law.

party, to a proceeding, means—

(a)for a criminal proceeding—the prosecutor and each accused person; or

(b)for a civil proceeding—each person who is a party to the proceeding; or

(c)for another proceeding—each person who has been given leave to appear in the proceeding.

55Proof of incorporation or registration of company in Queensland

(1)Evidence of the incorporation or registration of a company within the meaning of the Corporations Act that is taken to be registered in Queensland may be given by the production of—

(a)a certificate of the incorporation or registration of the company that purports to be given by the Australian Securities and Investments Commission (the commission), the commission’s delegate or a commission officer; or

(b)an affidavit or statutory declaration of an officer of the company (company verification) made under the Oaths Act 1867 .

(2)The date of incorporation or registration mentioned in the certificate or company verification is evidence of the date on which the company was incorporated or registered.

(2A)Evidence that a company is not incorporated or registered, or no longer incorporated or registered, may be given by the production of a certificate that purports to be given by the commission, the commission’s delegate or a commission officer.

(2B)The date a company ceased being incorporated or registered mentioned in the certificate is evidence of the date on which the company ceased being incorporated or registered.

(3)A document that purports to be—

(a)a copy of, or extract from, a document kept and registered in the office of the commission; and

(b)certified by the commission or the delegate or an officer of the commission;

is admissible in evidence in all cases in which the original document is admissible and for the same purposes and to the same extent.

(4)If the prosecution in a criminal proceeding intends to rely on a company verification, the prosecutor must serve a copy of it on the defendant or the defendant’s legal representative—

(a)for a summary trial or committal proceeding—

(i)when the summons is served on the defendant; or

(ii)not later than 14 days after the defendant first appears in court for the alleged offence; or

(b)for a trial on indictment—not later than 14 days after the indictment against the defendant is presented.

(5)A defendant who is served with a copy of a company verification under subsection (4) must give the prosecution a written notice stating whether the defendant intends to contest a following matter about the company’s incorporation or registration mentioned in the company verification—

(a)the fact of its incorporation or registration;

(b)the date of its incorporation or registration;

(c)the date on which it ceased being incorporated or registered.

(6)The defendant must give the notice by not later than—

(a)10 days before the day the trial of the proceedings to which the notice relates starts; or

(b)the end of a later period allowed by the court, if the court considers it just to extend the period in the particular circumstances.

(7)If, in a proceeding before it, a court considers the defendant or the defendant’s lawyer has unnecessarily caused the prosecution to prove the incorporation or registration of a company, the court may order the defendant to pay the prosecution’s costs of proving the incorporation or registration.

(8)For this section, a defendant is taken to be served with a copy of a company verification if the copy is served on the defendant’s lawyer.

55AProof of disaster situation under Disaster Management Act 2003

(1)Any of the following is evidence of the declaration of a disaster situation—

(a)a copy of a declaration (a relevant declaration) for the disaster situation made under the Disaster Management Act 2003 , section 64 (1) or 69;

(b)the gazette purporting to contain notice of the relevant declaration;

(c)for an oral declaration—a statement from the responsible person for the oral declaration that the oral declaration was made under the Disaster Management Act 2003 .

(2)In this section—

disaster situation means a disaster situation within the meaning of the Disaster Management Act 2003 .

oral declaration means a declaration of a disaster situation made orally under the Disaster Management Act 2003 , section 65 (5) or 70(5), that, at the time of the hearing, has not been recorded under the Disaster Management Act 2003 , section 65 (7) or 70(7).

responsible person, for an oral declaration, means the person who made the oral declaration under the Disaster Management Act 2003 , section 65 (5) or 70(5).

56Proof of unallocated State land grants

Upon its production in any proceeding wherein it is sought to prove any grant from the Crown of land within the State a document that purports—

(a)to be a copy of the instrument of grant or of an entry of such instrument; and

(b)to be certified under the hand of the registrar of titles;

shall be evidence and, in the absence of evidence to the contrary, conclusive evidence of the matters contained therein.

57Proof of lease or licence

(1)This section applies to an instrument of lease or licence issued or continued in force and held under any of the following Acts—

•Housing Act 2003

•Land Act 1994

•Mineral Resources Act 1989 .

(2)An instrument may be proved by the production of a document purporting to be a copy of the instrument certified by the chief executive of the issuing department.

(3)In this section—

issuing department, for an instrument of a lease or licence, means the department dealing with matters about the provisions of the Act under which the lease or licence was issued or continued in force and held.

58Proof of letters patent

(1)The chief executive (premiers) or the State archivist may certify a copy of any letters patent issued by the Crown in relation to the State, or in relation to any matter that concerns the State, to be a true copy of the letters patent.

(2)The chief executive (premiers) may delegate the power under subsection (1) to an appropriately qualified officer of that chief executive’s department.

(3)The State archivist may delegate the power under subsection (1) to an appropriately qualified officer of the State archives.

(4)The copy of the letters patent certified by the chief executive (premiers) or the State archivist is, on production in any proceeding in which it is sought to prove the letters patent, evidence of the matters contained in the copy.

(5)In this section—

chief executive (premiers) means the chief executive of the department dealing with matters under the Constitution of Queensland 2001 .

State archives means the Queensland State Archives established under the Public Records Act 2002 , section 21 (2) .

State archivist means the State Archivist under the Public Records Act 2002 , section 21 (1) .

58AProof of document under Royal Sign Manual

Evidence of a document under the signature or royal hand of the Sovereign in relation to the State or in relation to any matter concerning the State (the Royal Sign Manual document) may be given by the production of a document purporting to be a copy of the Royal Sign Manual document certified by the chief executive of the department dealing with matters under the Constitution of Queensland 2001 .

Division 2 Proof of certain miscellaneous documents and matters

59Comparison of disputed writing

(1)Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses and such writings and the evidence of witnesses respecting the same may be submitted as evidence of the genuineness or otherwise of the writing in dispute.

(2)A court may compare a disputed writing with any writing that is genuine and act upon its own conclusions in relation thereto.

60Proof of instrument to validity of which attestation is not necessary

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 by admission or otherwise as if there had been no attesting witness thereto.

61Proof of instrument to validity of which attestation is necessary

(1)Any 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.

(2)Nothing in this section shall apply to the proof of wills or other testamentary documents.

62Presumption as to documents 20 years old

Where any document is proved or purports to be not less than 20 years old, there shall be made any presumption which immediately before the date of the passing of the Evidence Acts Amendment Act 1962 would have been made in the case of a document of like character proved or purporting to be not less than 30 years old.

63Wills, deeds etc. may be verified by declaration

(1)Any attesting witness to the execution of any will or codicil, deed, or instrument in writing, and any other competent person, may verify and prove the signing, sealing, publication, or delivery of any such will, codicil, deed or instrument in writing by declaration in writing made under the Oaths Act 1867 .

(2)A party who intends to adduce in evidence as proof of the execution of a will, codicil, deed or instrument in writing a declaration made in accordance with subsection (1) shall give such notice of the party’s intention to do so as may be required by rules of court.

(3)The method of proof prescribed by this section shall be in addition to and not in derogation of any other method of proving the due execution of a will or codicil prescribed by rules of court.

64Evidentiary effect of probate etc.

(1)The probate of a will or letters of administration with a will annexed are evidence of the due execution of the will.

(2)The copy of a will annexed to a probate or to letters of administration is evidence of the contents of the will.

(3)The probate of a will is evidence of the death of the testator and, if the probate states the date of death of the testator, of the date of the testator’s death.

(4)Letters of administration of the estate of a deceased person are evidence of the death of the person and, if the letters of administration state the date of death of the person, of the date of the person’s death.

(5)In this section—

(a)a reference to probate shall be read as a reference to probate, and to an exemplification of probate, whether granted within or outside the State; and

(b)a reference to letters of administration shall be read as a reference to letters of administration, to an exemplification of letters of administration, whether granted within or outside the State and to an order to administer the estate of a deceased person granted to the public trustee.

65Maps, charts etc.

(1)Where in a proceeding there is a question as to the territorial limits or situation of an area or place, or the distance between 2 places, a court may admit in evidence—

(a)a published book, map, chart or document that appears to the court to be a reliable source of information in relation to the question; or

(b)a certificate purporting to be given by the chief executive (surveys), or the holder of another office that, in the court’s opinion, qualifies the person to express an opinion about the question.

(2)In any proceeding a map, chart or plan purporting to be issued or published by any department of the Government of the State or of the Commonwealth or by an officer thereof in discharge of the officer’s functions shall, upon its production, be sufficient evidence of the matters stated or delineated thereon until the contrary is proved.

66Astronomical phenomena

(1)Where in a proceeding there is a question as to the time or duration of any astronomical phenomenon that has occurred or shall occur in relation to a place, a court may admit in evidence a certificate about the question given by the chief executive (surveys).

(2)The certificate may include an explanation of the terms used therein, a statement of their recognised practical application, and the basis for calculating the time or duration of the astronomical phenomenon.

(3)In this section—

astronomical phenomenon includes the rising or setting of the sun or moon, the position of the sun or moon, the phase of the moon and the degree of twilight.

Division 3 Proof of certain Australian and overseas documents and matters

67Definitions for div 3

In this division—

overseas country means a country or part of a country outside the Commonwealth and includes any international organisation of which the Commonwealth or an overseas country is a member.

statute includes any instrument of a legislative nature made, granted or issued under a statute.

68Proof of certain Australian and overseas written laws etc.

Evidence of—

(a)a statute, proclamation or act of state of a State or Territory other than Queensland; or

(b)a statute, proclamation, treaty or act of state of an overseas country;

may be given by the production of—

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

(d)a copy purporting to be sealed with the seal of that State, Territory or country; or

(e)a book or pamphlet purporting to be published by the authority of the government of that State, Territory or country or by the government or official printer of that State, Territory or country containing the statute, proclamation, treaty or act of state; or

(f)a book or publication that appears to the court to be a reliable source of information containing the statute, proclamation, treaty or act of state; or

(g)a book or pamphlet that is proved to the satisfaction of the court to be admissible in the courts in that State, Territory or country as evidence of the statutes, proclamations, treaties or acts of state of that State, Territory or country contained in that book or pamphlet.

69Proof of judicial proceedings of an overseas country

Evidence of—

(a)a judgment, decree, rule, conviction, acquittal, sentence or other order, process, act or decision of any court in an overseas country; or

(b)an affidavit, pleading, will, codicil, indictment or other legal document filed, deposited or presented in any such court;

may be given by the production of a copy thereof—

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

(d)purporting—

(i)to be sealed with the seal of such court; or

(ii)to be signed by a judge of such court with a statement in writing attached by the judge to the judge’s signature that such court has no seal and without proof of the judge’s judicial character or of the truth of such statement.

70Proof of certain documents admissible elsewhere in Australia

Any document which by a law at any time in force in a State or Territory other than Queensland is admissible in evidence for any purpose in a court of that State or Territory without proof of—

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

(b)the judicial or official character of the person appearing to have signed the same, shall be admissible in evidence to the same extent and for the same purpose in all courts in Queensland without such proof.

71Royal proclamations, orders of the Privy Council etc.

(1)Evidence of any royal proclamation, order of Her Majesty’s Privy Council, order, regulation, dispatch, or any other instrument made or issued by Her Majesty or by Her Majesty’s Privy Council, or by or under the authority of any of Her Majesty’s Secretaries of State, or of any department of Her Majesty’s Government in the United Kingdom, may be given—

(a)by the production of a document purporting to be a copy of the London gazette or of the government gazette purporting to contain a reprint of such proclamation, order of the Privy Council, order, regulation, dispatch or other instrument; or

(b)by the production in the case of any such proclamation of a copy purporting to be printed by the government printer.

(2)In this section (but without affecting the generality of the expression when used elsewhere)—

Her Majesty includes any predecessors of Her Majesty.

72Proof of certain Australian and overseas public documents

Where a document of a State or Territory of the Commonwealth other than Queensland or of an overseas country is of such a public nature that it would if it were a Queensland document be admissible in evidence in Queensland on its mere production from proper custody, a copy of or extract from the document shall be admissible in evidence if—

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

(b)it purports to be certified as a true copy or extract under the hand of a person described in the certificate as the person to whose custody the original is entrusted.

73Proof of incorporation or registration of certain Australian and overseas companies

Evidence of the incorporation or registration of a company within the meaning of the Corporations Act that is taken to be registered in a State or Territory of the Commonwealth other than Queensland or in an overseas country may be given by the production of a certificate of the incorporation or registration of that company which purports to be signed or issued by the Australian Securities and Investments Commission or the proper officer or body in that country, 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.

74Proof of birth, adoption, death or marriage

A document purporting to be either the original or a certified copy of a certificate, entry or record of a birth, adoption, death or marriage alleged to have taken place whether in Australia or elsewhere is evidence in a proceeding of the matters contained therein.

Division 4 Proof of telegraphic messages

75Notice of intention to adduce telegraphic message in evidence

(1)In any proceeding (not being a criminal proceeding), any party may at any time after the commencement thereof give notice to any other party that the party proposes to adduce in evidence at the trial or hearing any telegraphic message that has been sent by telegraph from any place in the Commonwealth to any other place in the Commonwealth.

(1A)However—

(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 2 days; and

(b)every such notice shall specify the names of the sender and receiver of the message, the subject matter thereof, and the 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 produce may now be served and proved.

76Proof of message

Where a notice under section 75 has been given, the production of a telegraphic message described in the notice and purporting to have been sent by any person, together with evidence that the same was duly received from a telegraph office, shall be evidence that such message was sent by the person so purporting to be the sender thereof to the person to whom the same is addressed.

77Proof of sending a message

Where a notice under section 75 has been given, the production of a telegraphic message, or a copy thereof verified on oath, together with evidence that such message was sent to or delivered at a telegraph office and that the fees (if any) for the transmission thereof were duly paid shall be evidence that such message was duly delivered to the person named therein as the person to whom the same was to be transmitted.

Division 5 Admissibility of convictions in civil proceedings

78Definitions for div 5

In this division—

conviction does not include—

(a)a conviction that has been set aside or quashed; or

(b)where the person convicted of an offence has been granted a pardon in respect of that offence, such a conviction;

and the term convicted has a corresponding meaning.

court means any court of Queensland, of the Commonwealth or of any other State or Territory but does not include a court martial.

79Convictions as evidence in civil proceedings

(1)In this section—

civil proceeding does not include an action for defamation.

convicted means a finding of guilt for an offence, on a plea of guilty or otherwise, and whether or not a conviction was recorded.

(2)In any civil proceeding the fact that a person has been convicted by a court of an offence is admissible in evidence for the purpose of proving, where to do so is relevant to any issue in that proceeding, that the person committed that offence.

(3)In any civil proceeding in which by virtue of this section a person is proved to have been convicted by a court of an offence the person shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence.

(4)This section applies—

(a)whether or not a person was convicted upon a plea of guilty; and

(b)whether or not the person convicted is a party to the civil proceeding.

80Convictions as evidence in actions for defamation

In an action for defamation in which the question whether a person did or did not commit a criminal offence is relevant to an issue arising in the action, proof that at the time when the issue falls to be determined that person stands convicted by a court of that offence is conclusive evidence that the person committed that offence.

81Evidence identifying the particulars of a conviction

Without prejudice to the reception of any other evidence for the purpose of identifying the particulars of a conviction—

(a)the contents of any document which is admissible as evidence of the conviction; and

(b)the contents of any document which is admissible as evidence of the complaint, information, indictment or charge on which the person in question was convicted;

shall be admissible for that purpose where by virtue of section 79 or 80 evidence of the conviction may be given.

82Operation of other laws not affected

Nothing in this division derogates from the operation of any other law under which a conviction or finding of fact in a criminal proceeding is, for the purposes of any proceeding, made evidence or conclusive evidence of any fact.

Division 6 Books of account

83Definitions for div 6

In this division—

book of account includes any document used in the ordinary course of any undertaking to record the financial transactions of the undertaking or to record anything acquired or otherwise dealt with by, produced in, held for or on behalf of, or taken or lost from the undertaking and any particulars relating to any such thing.

court means—

(a)in relation to any proceeding in the Supreme Court—the Supreme Court or a judge thereof; and

(b)in relation to any proceeding in the District Court—the District Court or a judge thereof; and

(c)in relation to any proceeding in a Magistrates Court or before justices—the Magistrates Court, a magistrate or a justice; and

(d)in relation to any other proceeding—the Supreme Court or a judge thereof.

84Entries in book of account to be evidence

Subject to this division, in all proceedings—

(a)an entry in a book of account shall be evidence of the matters, transactions and accounts therein recorded; and

(b)a copy of an entry in a book of account shall be evidence of the entry and of the matters, transactions and accounts therein recorded.

85Proof that book is a book of account

(1)An entry or a copy of an entry in a book of account shall not be admissible in evidence under this division unless it is first proved that the book was at the time of the making of the entry 1 of the ordinary books of account of the undertaking to which it purports to relate and that the entry was made in the usual and ordinary course of that undertaking.

(2)Such proof may be given by a responsible person familiar with the books of account of the undertaking and may be given orally or by an affidavit sworn or by a declaration made before a commissioner or person authorised to take affidavits or statutory declarations.

86Verification of copy

(1)A copy of an entry in a book of account shall not be admissible in evidence under this division unless it is further proved that the copy has been examined with the original entry and is correct.

(2)Such proof may be given by some person who has examined the copy with the original entry and may be given either orally or by an affidavit sworn or by a declaration made before a commissioner or person authorised to take affidavits or statutory declarations.

87Matters which may be proved under this division ordinarily to be so proved

A person engaged in any undertaking or an employee of that person shall not in any proceeding to which the person is not a party be compellable to produce any book of account the contents of which can be proved under this division or to appear as a witness to prove the matters, transactions and accounts therein recorded unless by order of a court.

88Court may order books of account or copies to be made available

(1)On the application of any party to a proceeding, a court may order that such party be at liberty to inspect and take copies of or extracts from any entries in a book of account of any undertaking for any of the purposes of such proceeding.

(2)An order under this section may be made either with or without summoning the person engaged in the undertaking or any other party and shall be served on the person engaged in the undertaking 3 clear days before the same is to be obeyed unless the court otherwise directs.

(3)An order under this section may direct that the person engaged in the undertaking shall, on payment of such fee as is specified in the order, prepare and deliver to the party who obtained that order a duly verified copy of such entries as may be required for evidence in the proceeding.

(4)For the purposes of subsection (2), Saturday, Sunday, and any day which is a public holiday throughout the State or in that part of the State in which the order is to be obeyed shall be excluded from the computation of time.

(5)Where a person engaged in any undertaking is a party to a proceeding, the other party or parties thereto shall be at liberty to inspect and make copies of or extracts from the original entries and the accounts of which such entries form a part and the documents in respect of which such entries were made as though this division had not been enacted.

89Proof that a person has no account

(1)Where it is sought to prove for the purposes of a proceeding that a person did not at a given time have an account with an undertaking or with any branch thereof, evidence of the fact may be given by a responsible person familiar with the books of account of the undertaking or, as the case may be, of the branch thereof.

(2)Such evidence may be given by such person orally or by an affidavit sworn or by a declaration made before a commissioner or person authorised to take affidavits or statutory declarations.

90Costs

(1)The costs of any application to a court under or for the purposes of this division and the costs of anything done or to be done under an order of a court made under or for the purposes of this division shall be in the discretion of the court, who may order the same or any part thereof to be paid to any party by the person engaged in the undertaking concerned where the same have been occasioned by any default or delay on the part of that person.

(2)Any such order against a person engaged in an undertaking may be enforced as if the person were a party to the proceeding.

91Application of ss 84 –86 and 89

Sections 84 to 86 and 89 shall apply to and in relation to books of account and persons engaged in undertakings in any State or Territory.

Part 6 Admissibility of statements and representations

92Admissibility of documentary evidence as to facts in issue

(1)In any proceeding (not being a criminal proceeding) where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, subject to this part, be admissible as evidence of that fact if—

(a)the maker of the statement had personal knowledge of the matters dealt with by the statement, and is called as a witness in the proceeding; or

(b)the document is or forms part of a record relating to any undertaking and made in the course of that undertaking from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied, and the person who supplied the information recorded in the statement in question is called as a witness in the proceeding.

(2)The condition in subsection (1) that the maker of the statement or the person who supplied the information, as the case may be, be called as a witness need not be satisfied where—

(a)the maker or supplier is dead, or unfit by reason of bodily or mental condition to attend as a witness; or

(b)the maker or supplier is out of the State and it is not reasonably practicable to secure the attendance of the maker or supplier; or

(c)the maker or supplier can not with reasonable diligence be found or identified; or

(d)it can not reasonably be supposed (having regard to the time which has elapsed since the maker or supplier made the statement, or supplied the information, and to all the circumstances) that the maker or supplier would have any recollection of the matters dealt with by the statement the maker made or in the information the supplier supplied; or

(e)no party to the proceeding who would have the right to cross-examine the maker or supplier requires the maker or supplier being called as a witness; or

(f)at any stage of the proceeding it appears to the court that, having regard to all the circumstances of the case, undue delay or expense would be caused by calling the maker or supplier as a witness.

(3)The court may act on hearsay evidence for the purpose of deciding any of the matters mentioned in subsection (2)(a), (b), (c), (d) or (f).

(4)For the purposes of this part, a statement contained in a document is made by a person if—

(a)it was written, made, dictated or otherwise produced by the person; or

(b)it was recorded with the person’s knowledge; or

(c)it was recorded in the course of and ancillary to a proceeding; or

(d)it was recognised by the person as the person’s statement by signing, initialling or otherwise in writing.

93Admissibility of documentary evidence as to facts in issue in criminal proceedings

(1)In any criminal proceeding where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, subject to this part, be admissible as evidence of that fact if—

(a)the document is or forms part of a record relating to any trade or business and made in the course of that trade or business from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied; and

(b)the person who supplied the information recorded in the statement in question—

(i)is dead, or unfit by reason of the person’s bodily or mental condition to attend as a witness; or

(ii)is out of the State and it is not reasonably practicable to secure the person’s attendance; or

(iii)can not with reasonable diligence be found or identified; or

(iv)can not reasonably be supposed (having regard to the time which has lapsed since the person supplied the information and to all the circumstances) to have any recollection of the matters dealt with in the information the person supplied.

(2)In this section—

business includes any public transport, public utility or similar undertaking carried on in Queensland or elsewhere by the Crown (in right of the State of Queensland or any other right) or a statutory body.

93AStatement made before proceeding by child or person with an impairment of the mind

(1)In any proceeding where direct oral evidence of a fact would be admissible, any statement tending to establish that fact, contained in a document, shall, subject to this part, be admissible as evidence of that fact if—

(a)the maker of the statement was a child or a person with an impairment of the mind at the time of making the statement and had personal knowledge of the matters dealt with by the statement; and

(b)the maker of the statement is available to give evidence in the proceeding.

(2)If a statement mentioned in subsection (1) (the main statement) is admissible, a related statement is also admissible as evidence if the maker of the related statement is available to give evidence in the proceeding.

(2A)A related statement is a statement—

(a)made by someone to the maker of the main statement, in response to which the main statement was made; and

(b)contained in the document containing the main statement.

(2B)Subsection (2) is subject to this part.

(3)Where the statement of a person is admitted as evidence in any proceeding pursuant to subsection (1) or (2), the party tendering the statement shall, if required to do so by any other party to the proceeding, call as a witness the person whose statement is so admitted and the person who recorded the statement.

(3A)For a committal proceeding for a relevant offence, subsections (1)(b) and (3) do not apply to the person who made the statement if the person is an affected child.

Note—

For the taking of an affected child’s evidence for a committal proceeding for a relevant offence, see part 2 , division 4A , subdivision 2 .

(4)In the application of subsection (3) to a criminal proceeding—

party means the prosecution or the person charged in the proceeding.

(5)In this section—

affected child see section 21AC .

child, in relation to a person who made a statement under subsection (1), means—

(a)a person who was under 16 years when the statement was made, whether or not the person is under 16 years at the time of the proceeding; or

(b)a person who was 16 or 17 years when the statement was made and who, at the time of the proceeding, is a special witness.

relevant offence see section 21AC .

93AAUnauthorised possession of, or dealing in, s 93A criminal statements

(1)A person commits an offence who, without authority—

(a)has a section 93A criminal statement in the person’s possession; or

(b)supplies, or offers to supply, a section 93A criminal statement to any person; or

(c)copies, or permits a person to copy, a section 93A criminal statement.

Maximum penalty—

(a)for an individual—100 penalty units or 2 years imprisonment; or

(b)for a corporation—1,000 penalty units.

(2)A person has authority for subsection (1) if the person has the possession or does the thing mentioned in subsection (1) for a legitimate purpose connected with the proceeding for which the section 93A statement was made or another proceeding.

(2A)Also, the commissioner of the police service or the director of public prosecutions has authority for subsection (1) if the commissioner or director has the possession or does the thing mentioned in the subsection for the purpose of—

(a)preparing a transcript of a section 93A criminal statement so that it can be given to the chief executive (employment screening) as mentioned in paragraph (b); or

(b)giving, under the Working with Children Act, a section 93A transcript, or a summary of a section 93A transcript, to the chief executive (employment screening).

(2B)A person does not commit an offence against subsection (1)(a) by possessing a section 93A transcript, or a summary of a section 93A transcript, if the transcript or summary—

(a)was, under the Working with Children Act, given to the former CCYPCG commissioner or the chief executive (employment screening) by the commissioner of the police service or the director of public prosecutions; and

(b)is in the person’s possession, at the relevant time, for the purpose of making an employment-screening decision.

(2C)A person does not commit an offence against subsection (1)(b) if the person supplies, or offers to supply, a written summary of a section 93A transcript that is in the person’s possession under subsection (2B)—

(a)to a WWC applicant; and

(b)for a legitimate purpose directly related to the making of an employment-screening decision.

(2D)A person does not commit an offence against subsection (1)(c) if—

(a)the person copies, or permits a person to copy, a section 93A transcript, or a summary of a section 93A transcript, that is in the person’s possession under subsection (2B); and

(b)the copying is done for the purpose of making an employment-screening decision.

(2E)A WWC applicant—

(a)does not commit an offence against subsection (1)(a) by possessing a written summary of a section 93A transcript, if the summary—

(i)was given to the applicant under subsection (2C); and

(ii)is in the applicant’s possession, at the relevant time, for a legitimate purpose directly related to the making of an employment-screening decision; and

(b)does not commit an offence against subsection (1)(b) if the applicant supplies, or offers to supply, a written summary of a section 93A transcript that is in the applicant’s possession under paragraph (a), or a copy of the summary—

(i)to an Australian lawyer; and

(ii)for the purpose of obtaining legal advice directly related to the making of an employment-screening decision; and

(c)does not commit an offence against subsection (1)(c) if—

(i)the applicant copies, or permits a person to copy, a written summary of a section 93A transcript that is in the applicant’s possession under paragraph (a); and

(ii)the copying is done so that a copy of the summary can be given to an Australian lawyer for the purpose of obtaining legal advice directly related to the making of an employment-screening decision.

(2F)An Australian lawyer does not commit an offence against subsection (1)(a) by possessing a written summary of a section 93A transcript, or a copy of a written summary of a section 93A transcript, if the summary or copy—

(a)was given to the lawyer under subsection (2E) by a WWC applicant; and

(b)is in the lawyer’s possession, at the relevant time, for the purpose of providing legal advice directly related to the making of an employment-screening decision about the applicant.

(3)In this section—

Australian lawyer has the meaning given by the Legal Profession Act 2007 .

chief executive (employment screening) means the chief executive of the department in which the Working with Children Act is administered.

employment-screening decision means an employment-screening decision under the Working with Children Act.

former CCYPCG commissioner means the Commissioner for Children and Young People and Child Guardian before the commencement of this definition.

section 93A criminal statement means a statement—

(a)made to a person investigating an alleged offence; and

(b)given in, or in anticipation of, a criminal proceeding about the alleged offence; and

(c)that is potentially admissible under section 93A .

section 93A transcript means a transcript of a section 93A criminal statement.

Working with Children Act means the Working with Children (Risk Management and Screening) Act 2000 .

WWC applicant, for a section 93A transcript, means a person—

(a)who allegedly committed the alleged offence to which the transcript relates; and

(b)about whom the former CCYPCG commissioner or the chief executive (employment screening) has made, or the chief executive (employment screening) is about to make, an employment-screening decision.

93BAdmissibility of representation in prescribed criminal proceedings if person who made it is unavailable

(1)This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact—

(a)made a representation about the asserted fact; and

(b)is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence.

(2)The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was—

(a)made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or

(b)made in circumstances making it highly probable the representation is reliable; or

(c)at the time it was made, against the interests of the person who made it.

(3)If evidence given by a person of a representation about a matter has been adduced by a party and has been admitted under subsection (2), the hearsay rule does not apply to the following evidence adduced by another party to the proceeding—

(a)evidence of the representation given by another person who saw, heard or otherwise perceived the representation;

(b)evidence of another representation about the matter given by a person who saw, heard or otherwise perceived the other representation.

(4)To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence.

(5)In this section—

prescribed criminal proceeding means a criminal proceeding against a person for an offence defined in the Criminal Code , chapters 28 to 32.

representation includes—

(a)an express or implied representation, whether oral or written; and

(b)a representation to be inferred from conduct; and

(c)a representation not intended by the person making it to be communicated to or seen by another person; and

(d)a representation that for any reason is not communicated.

93CWarning and information for jury about hearsay evidence

(1)This section applies if evidence is admitted under section 93B (hearsay evidence) and there is a jury.

(2)On request by a party, the court must, unless there are good reasons for not doing so—

(a)warn the jury the hearsay evidence may be unreliable; and

(b)inform the jury of matters that may cause the hearsay evidence to be unreliable; and

(c)warn the jury of the need for caution in deciding whether to accept the hearsay evidence and the weight to be given to it.

(3)It is not necessary for a particular form of words to be used in giving the warning or information.

(4)This section does not affect another power of the court to give a warning to, or to inform, the jury.

94Admissibility of evidence concerning credibility of persons responsible for statement

(1)Where in any proceeding a statement is given in evidence by virtue of section 84 , 92 , 93 or 93A and a person who made the statement or supplied the information recorded in it is not called as a witness in the proceeding—

(a)any evidence which, if that person had been so called, would be admissible for the purpose of destroying or supporting the person’s credibility as a witness shall be admissible for that purpose in that proceeding;

(b)any evidence tending to prove that, whether before or after the person made that statement or supplied that information, the person made another statement or supplied other information (whether orally or in a document or otherwise) inconsistent therewith shall be admissible for the purpose of showing that the person has contradicted himself or herself;

but nothing in paragraph (a) or (b) shall enable 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.

(2)Where in any proceeding a statement is given in evidence by virtue of section 84 , 92 , 93 or 93A and a person who made the statement or supplied the information recorded in it is not called as a witness in the proceeding any evidence proving that that person has been guilty of any indictable or other offence shall, with the leave of the court, be admissible in the proceeding to the same extent as if that person had been so called and on being questioned as to whether the person had been convicted of an indictable or other offence had denied the fact or refused to answer the question.

95Admissibility of statements in documents or things produced by processes or devices

(1)In a proceeding where direct oral evidence of a fact would be admissible, a statement contained in a document or thing produced wholly or partly by a device or process and tending to establish that fact is, subject to this part, admissible as evidence of that fact.

(2)A court may presume the process or device produced the document or thing containing the statement if the court considers an inference can reasonably be made that the process or device, if properly used, produces a document or thing of that kind.

(3)In a proceeding, a certificate purporting to be signed by a responsible person for the process or device and stating any of the following matters is evidence of the matter for the purpose of subsection (2)—

(a)that the document or thing was produced wholly or partly by the process or device;

(b)that the document or thing was produced wholly or partly in a particular way by the process or device;

(c)that, if properly used, the process or device produces documents or things of a particular kind;

(d)any particulars relevant to a matter mentioned in paragraph (a), (b) or (c).

(4)A person who signs a certificate mentioned in subsection (3) commits an offence if—

(a)a matter is stated in the certificate that the person knows is false or ought reasonably to know is false; and

(b)the statement of the matter is material in the proceeding.

Maximum penalty—20 penalty units or 1 year’s imprisonment.

(5)If a party (the relying party) to a proceeding intends to rely on the certificate, the party must give a copy of the certificate to each other party to the proceeding—

(a)at least 10 business days before the hearing day; or

(b)if, in the particular circumstances, the court considers it just to shorten the period mentioned in paragraph (a)—by a later date allowed by the court.

(6)If a party to the proceeding, other than the relying party, intends to challenge a matter stated in the certificate, the party must give the relying party notice in writing of the matter to be challenged—

(a)at least 3 business days before the hearing day; or

(b)if, in the particular circumstances, the court considers it just to shorten the period mentioned in paragraph (a)—by a later date allowed by the court.

(7)In this section—

hearing day means the day fixed for the start of the hearing of the proceeding.

responsible person, for a process or device that produced a document or thing, means a person responsible, at or about the time the process or device produced the document or thing, for—

(a)the operation of the process or device; or

(b)the management of activities for which the document or thing was produced by the process or device.

95ADNA evidentiary certificate

(1)This section applies to a criminal proceeding.

(2)However, subsections (4), (5), (8) and (9) do not apply to a criminal proceeding if the proceeding is an examination of witnesses in relation to an indictable offence.

(3)A certificate, in the approved form, purporting to be signed by a DNA analyst and stating any of the following matters is evidence of the matter—

(a)that a stated thing was received at a stated laboratory on a stated day;

(b)that the thing was tested at the laboratory on a stated day or between stated days;

(c)that a stated DNA profile has been obtained from the thing;

(d)that the DNA analyst—

(i)examined the laboratory’s records relating to the receipt, storage and testing of the thing, including any test process that was done by someone other than the DNA analyst; and

(ii)confirms that the records indicate that all quality assurance procedures for the receipt, storage and testing of the thing that were in place in the laboratory at the time of the test were complied with.

(4)If a party (the relying party) intends to rely on the certificate, the relying party must, at least 10 business days before the hearing day, give a copy of the certificate to each other party.

(5)If, at least 5 business days before the hearing day, a party other than the relying party gives a written notice to each other party that it requires the DNA analyst to give evidence, the relying party must call the DNA analyst to give evidence at the hearing.

(6)If the responsible person for the laboratory receives a written request from a party for a copy of the laboratory’s records relating to the receipt, storage and testing of the thing, the responsible person must give the party a copy of the records within 7 business days after receiving the request.

(7)If a party intends to challenge a matter stated in the certificate, the party must, at least 5 business days before the hearing day, give the responsible person and each other party notice, in the approved form, of the matter to be challenged.

(8)A party challenging a matter stated in the certificate may, with the leave of the court, require the party relying on the certificate to call any person involved in the receipt, storage or testing of the thing to give evidence at the hearing.

(9)The court may give leave only if the court is satisfied that—

(a)an irregularity may exist in relation to the receipt, storage or testing of the thing about which the person to be called is able to give evidence; or

(b)it is in the interests of justice that the person be called to give evidence.

(10)Any equipment used in testing the thing at the laboratory is to be taken to have given accurate results in the absence of evidence to the contrary.

(11)The court may at any time, on application by a party, make an order shortening or extending a period mentioned in this section.

(12)Without limiting subsection (11), the court may waive the requirement for a party other than the relying party to give notice under subsection (5) that it requires the DNA analyst to give evidence.

(13)If the court makes an order under subsection (12), the relying party must call the DNA analyst to give evidence at the hearing.

(14)In this section—

DNA analyst means a person who holds an appointment as a DNA analyst under section 133A .

DNA profile means the result from DNA analysis.

hearing day means the day fixed for the start of the hearing of the proceeding.

party means the prosecution or a person charged in the proceeding.

responsible person, for a laboratory, means—

(a)if the commissioner of the police service has entered into a DNA arrangement with the laboratory under the Police Powers and Responsibilities Act 2000 , section 488B (1) —the chief executive officer, however described, of the laboratory; or

(b)otherwise—the chief executive of the department within which the Hospital and Health Boards Act 2011 is administered.

96Inferences concerning admissibility

(1)For the purpose of deciding whether or not a statement is admissible in evidence by virtue of this part, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances.

(2)For the purpose of deciding whether or not a statement is admissible in evidence by virtue of section 92 or 93 , the court may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be a certificate of a legally qualified medical practitioner.

97Authentication

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

98Rejection of evidence

(1)The court may in its discretion reject any statement or representation notwithstanding that the requirements of this part are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.

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

99Withholding statement from jury room

Where in a proceeding there is a jury, and a statement in a document is admitted in evidence under this part, and it appears to the court that if the jury were to have the document with them during their deliberations they might give the statement undue weight, the court may direct that the document be withheld from the jury during their deliberations.

100Corroboration

For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by this part shall not be treated as corroboration of evidence given by the maker of the statement or the person who supplied the information from which the record containing the statement was made.

101Witness’s previous statement, if proved, to be evidence of facts stated

(1)Where in any proceeding—

(a)a previous inconsistent or contradictory statement made by a person called as a witness in that proceeding is proved by virtue of section 17 , 18 or 19 ; or

(b)a previous statement made by a person called as aforesaid is proved for the purpose of rebutting a suggestion that the person’s evidence has been fabricated;

that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible.

(2)Subsection (1) shall apply to any statement or information proved by virtue of section 94 (1)(b) as it applies to a previous inconsistent or contradictory statement made by a person called as a witness which is proved as mentioned in subsection (1)(a).

(3)Nothing in this part shall affect any of the rules of law relating to the circumstances in which, where a person called as a witness in any proceeding is cross-examined on a document used by the person to refresh the person’s memory, that document may be made evidence in that proceeding, and where a document or any part of a document is received in evidence in any such proceeding by virtue of any such rule of law, any statement made in that document or part by the person using the document to refresh the person’s memory shall by virtue of this subsection be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible.

102Weight to be attached to evidence

In estimating the weight (if any) to be attached to a statement rendered admissible as evidence by this part, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including—

(a)the question whether or not the statement was made, or the information recorded in it was supplied, contemporaneously with the occurrence or existence of the facts to which the statement or information relates; and

(b)the question whether or not the maker of the statement, or the supplier of the information recorded in it, had any incentive to conceal or misrepresent the facts.

103Provisions of part are alternative

Sections 92 to 95 and 101 shall be construed as in aid of and as alternative to one another, any other provision in any other part, and any other law practice or usage with respect to the admissibility in evidence of statements.

Part 7 Reproductions of documents

Division 1 Preliminary

104Definitions for part

In this part—

affidavit includes statutory declarations.

business includes any undertaking.

machine copy, in relation to a document, means a copy of the document made by a machine performing a process—

(a)involving the production of a latent image of the document (not being a latent image on photosensitive material on a transparent base) and the development of that image by chemical means or otherwise; or

(b)that, without the use of photosensitive material, produces a copy of the document simultaneously with the making of the document.

original document means—

(a)when referred to in connection with the production of a document in answer to legal process issued by a court, the document that would, if this part had not been enacted, be required to be produced in answer to that process; or

(b)when referred to in connection with the admissibility of a document in evidence in a proceeding—

(i)a document that would, if this part had not been enacted, be admissible in evidence in that proceeding in lieu of another document where a party to the proceeding failed to produce that other document in response to notice to do so given to the party by another such party; or

(ii)any other document that would, if this part had not been enacted, be admissible in evidence in that proceeding.

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 and any derivatives thereof have a corresponding meaning.

transparency, in relation to a document, means—

(a)a developed negative or positive photograph of that document (an original photograph) made on a transparent base by means of light reflected from, or transmitted through, the document; or

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

(c)any 1 of a series of copies of an original photograph, the first of the series being made by the use of photosensitive material (being photosensitive material on a transparent base) placed in surface contact with a copy referred to in paragraph (b) of this definition, and each succeeding copy in the series being made, in the same manner, from any preceding copy in the series.

Division 2 Reproduction of official documents

105Certified reproductions of certain official documents etc. to be admissible without further proof

(1)In this section—

approved person means—

(a)a person the Minister declares by gazette notice to be an approved person; or

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

(2)A person shall not fail or cease to be an approved person by reason only of a misdescription or an abbreviated description of a designated office by virtue of which the person would, but for the misdescription or abbreviated description, be an approved person, where the misdescription or abbreviation does not materially affect identification of that person.

(3)A document that purports to be a copy of an original document shall, without further proof, be admissible in evidence in a 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 person, that it is a reproduction of a document that was in the custody or control of that person in the person’s official capacity—

(a)where the reproduction is a machine copy, at the time 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.

(4)Where an approved person is served with legal process to produce a document to a court it shall be a sufficient answer to such process if the person to whom the process is addressed sends by post, or causes to be delivered, to the registrar or proper officer of the court requiring the production of the document a reproduction, certified as provided by this section, of the document and, where more than 1 document is specified howsoever in the legal process, further certifies, that, to the best of the person’s knowledge and belief, the reproductions so sent or caused to be delivered are reproductions of the whole of the documents in question.

(5)For the purposes of this section and without prejudice to any form of custody or control, an approved person shall be deemed to have custody or control of a document at the time the transparency of the document was made if—

(a)the person has custody or control of the transparency; and

(b)the transparency—

(i)incorporates a transparency of a certificate purporting to have been signed by an approved person to the effect that the transparency was made as a permanent record of a document in the custody or under the control of the person who signed the certificate; or

(ii)is 1 of a series of transparencies that incorporates, as part of the series, a transparency of such a certificate relating to the transparencies in the series.

(6)Division 3 of this part shall not apply to or in respect of a reproduction of a document referred to in this division.

Division 3 Reproduction of business documents

106Admissibility of reproductions of business documents destroyed, lost or unavailable

(1)Subject to this part, a document that purports to be a copy of an original document made or used in the course of a business shall, upon proof that it is a reproduction made in good faith and that the original document has been destroyed or lost, whether wholly or in part, or that it is not reasonably practicable to produce the original document or to secure its production, be admissible in evidence in any proceeding to the extent to which the contents of the original document of which it purports to be a copy would have been admissible and it shall, subject to proof of the same matters, be a sufficient answer to legal process issued by a court, requiring production of a document to the court, for the person required by that process to produce the document to produce such a reproduction of the document.

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

(a)stating the person’s full name, address and occupation; and

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

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

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

(e)stating that the making of the machine copy or photograph was properly carried out by the use of apparatus or materials in good working condition with the object of making a machine copy or, as the case may be, a transparency of the document; and

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

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

107Use of photographing machines

(1)For this part, a regulation may declare a machine to be an approved machine.

(2)Subject to this part, but in addition to and without derogating from the provisions of section 106 (1), a print made from a transparency of an original document (being a document made or used in the course of business) shall be admissible in evidence in a 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, upon proof that the transparency was made in good faith by using a machine that, at the time the transparency was made, was an approved machine and that the print is a print of the image on the transparency.

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

(a)stating the person’s full name, address and occupation and the person’s functions or duties (if any) in relation to copying documents; and

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

(c)stating the day upon which the document was photographed, the condition of the document at that time with respect to legibility and the extent of any damage to the document; and

(d)stating the person from whose custody or control the document was produced for photographing or on whose behalf or in the course of whose business the document was photographed; and

(e)identifying the approved machine and stating that the photographing was properly carried out in the ordinary course of business by the use of apparatus and materials in good working order and condition and in accordance with the conditions (if any) attaching to the approval of such machine as so notified; and

(f)stating that the document was photographed in good faith;

shall be evidence, whether such person is available to be called as a witness or not, that a transparency of the document referred to in the affidavit was made in good faith by using an approved machine and bears an image of the document.

108Affidavit of maker of print from transparency to be evidence

Without prejudice to any other mode of proof an affidavit purporting to have been made by a person at or about the time the person made a print from a transparency of a document—

(a)stating the person’s full name, address and occupation; and

(b)identifying the transparency; and

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

(d)describing the process by which the person made the print; and

(e)stating that the printing was properly carried out by the use of apparatus 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;

shall be evidence, whether such 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.

109Proof where document processed by independent processor

Where a person having the custody or control of a document—

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

(b)receives from the processor—

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

(ii)an affidavit by the processor under section 106 or 107 ;

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

110Reproduction not to be admitted as evidence unless transparency in existence

(1)Save as provided in subsection (2) a reproduction made from a transparency shall not be admitted as evidence pursuant to this division in any proceeding unless the court is satisfied—

(a)that the transparency is in existence at the time of the proceeding; and

(b)that the document reproduced was—

(i)in existence for a period of at least 12 months after the document was made; or

(ii)delivered or sent by the party tendering the reproduction to the other party or 1 of the other parties to the proceeding.

(2)The provisions of subsection (1)(b) do not apply with respect to a print made from a transparency made by using an approved machine where, at the time the print was made, the transparency was in the custody or control of—

(a)a Minister of the Crown in right of the Commonwealth or of the State of Queensland or of any other State or any officer in any government department under the direct control of any such Minister; or

(b)any council, board, commission, trust or other body established or constituted by or under the law of the Commonwealth or of the State of Queensland or of any other State or Territory for any public purpose; or

(c)a financial institution; or

(d)any corporation that is registered under the Life Insurance Act 1995 (Cwlth) where the document reproduced relates to the life insurance business of that corporation.

111Transparency etc. may be preserved in lieu of document

Where any Act passed before or after the commencement of this Act requires a document to which this division applies to be preserved for any purpose for a longer period of time than 3 years it shall be a sufficient compliance with such a requirement to preserve, in lieu of any such document more than 3 years old, a transparency thereof made by using an approved machine together with an affidavit relating to the transparency being a transparency and an affidavit to which section 115 applies.

112Proof of destruction of documents etc.

A statement by any person in an affidavit made for the purposes of this division—

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

(b)that after due search and inquiry a document can not be found; or

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

(d)that a transparency of a document is in the custody or control of a person, corporation or body referred to in section 110 (2); or

(e)that a document was made or was used in the course of the person’s or the person’s employer’s business; or

(f)that the person has made transparencies of a series of documents including the affidavit by photographing them in their proper order;

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

113One affidavit sufficient in certain circumstances

(1)This section applies to and in respect of transparencies, made by using an approved machine, of a series of documents that—

(a)bear or have been given serial numbers in arithmetical order; or

(b)bear or have been marked with the same 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 in their proper order on a continuous length of film or, where the documents are marked in accordance with paragraph (a) or (b), on separate films.

(2)An affidavit made pursuant to this division shall be deemed to be an affidavit 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; or

(b)the distinctive identification mark; or

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

as the case may require.

(3)Notwithstanding anything contained in this division, a print that purports to be made from a transparency of an affidavit referred to in subsection (2) shall be admissible in evidence in a proceeding as if it were the affidavit 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 affidavit relates; and

(b)an affidavit under section 108 relating to both prints is also produced or tendered.

114Certification required when affidavit etc. not contained in length or series of film

Where any affidavit relating to the reproduction of a document is not an affidavit referred to in section 113 (2), a copy thereof duly certified to be a true copy—

(a)in the case of an affidavit in the custody of a body corporate—by the chairperson, secretary or by a director or manager thereof; or

(b)in any other case—by a justice of the peace;

shall, unless the court otherwise orders, be admissible in evidence in a proceeding as if it were the affidavit of which it is certified to be a true copy.

115Discovery, inspection and production where document destroyed or lost

(1)In this section—

affidavit includes—

(a)a transparency, made as provided in section 113 , of an affidavit; and

(b)a copy, certified as provided in section 114 , of an affidavit.

(2)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 part for the purpose, be admissible in evidence in a proceeding; and

(b)an affidavit that would be evidence or, where the affidavit is itself in the form of a transparency, that could be the means of providing evidence, pursuant to this part, 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.

(3)Where any person has the custody or control of a transparency and an affidavit 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; or

(b)to produce the document for inspection; or

(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;

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

(4)For the purposes of this section—

(a)the obligation imposed by this section in respect of a requirement referred to in subsection (3)(b) shall be deemed to include an obligation—

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

(ii)to produce for inspection a print made from the transparency and, where the affidavit is itself in the form of a transparency, a print made from the transparency of the affidavit, together in each case, with an affidavit that would under section 108 , be evidence 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 (3)(d) shall be deemed not to include an obligation to supply a copy of any transparency but to include, in lieu thereof, an obligation to supply the print and affidavit or, as the case may require, the prints and affidavits, referred to in paragraph (a)(ii).

(5)Where any person has the custody or control of a transparency and an affidavit 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 the person of—

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

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

Division 4 General

116Copies to be evidence

Notwithstanding any other provision of this part, where a document has been copied by means of a photographic or other machine which produces a facsimile copy of the document, the copy is, upon proof to the satisfaction of the court that the copy was taken or made from the original document by means of the machine, admissible in evidence to the same extent as the original document would be admissible in evidence without—

(a)proof that the copy was compared with the original document; and

(b)notice to produce the original document having been given.

117Further reproduction may be ordered by court

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

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

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

the court 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 made under this section shall be made—

(a)where the order is made under subsection (1)(a), at the cost of the party who tendered the rejected print; or

(b)where the order is made under subsection (1)(b), in the presence of a person appointed by the court for the purpose and at the cost of the party who applied for the order.

(3)Where a print to which division 2 of this part relates is rejected under this section, a print made in compliance with an order under this section shall be made in the same premises as the rejected print or, where this is not practicable, in accordance with directions given by the court.

118Colours and tones of reproductions

(1)For the purposes of this part, the production of a reproduction of a document to a court in answer to a legal process, or the admission of such a reproduction in evidence in a proceeding, shall not be precluded on the ground that it is not a copy of an original document or, where the reproduction is a print made from a transparency, on the ground that the transparency does not bear an image of an original document, if the reproduction is not such a copy, or the transparency does not bear such an image, by reason only of the fact—

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

(b)that any number or mark of identification added for the purposes of section 113 appears in the reproduction or transparency.

(2)A document may be certified under division 2 of this part 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.

119Notice to produce not required

Where a reproduction of a document is admissible in evidence pursuant to this part, it shall be so admissible whether or not notice to produce the document of which it is a reproduction has been given.

120Proof of comparisons not required

Where a reproduction of a document is tendered as evidence pursuant to this part, no proof shall be required that the reproduction was compared with the original document.

121Presumptions as to ancient documents

Any presumption that may be made in respect of a document over 20 years old may be made with respect to any reproduction of that document admitted in evidence under this part in all respects as if the reproduction were the document.

122Reproductions made in other States

Where a reproduction is made of a document in another State or in a Territory and would be admissible in evidence in a proceeding in that State or Territory under a law of that State or Territory corresponding with this part, or a law of that State or Territory that a regulation declares to correspond with this part, the reproduction shall be admissible in evidence in a proceeding in Queensland in the same circumstances, to the same extent and for the like purpose as it would be admissible in evidence in a proceeding in that State or Territory under the law of that State or Territory.

123Judicial notice

Where any Act or law requires a court to take judicial notice of the seal or signature of any court, person or body corporate appearing on a document and a reproduction of that document is, pursuant to this part, admitted in evidence in a proceeding, the court 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.

124A court may reject reproduction

Notwithstanding anything contained in this part, a court may refuse to admit in evidence a reproduction tendered pursuant to this part if it considers it inexpedient in the interests of justice to do so as a result of any reasonable inference drawn by the court from the nature of the reproduction, the machine or process by which it or, in the case of a print from a transparency, by which the transparency was made, and any other circumstances.

125Weight of evidence

In estimating the weight to be attached to a reproduction of a document admitted in evidence pursuant to this part, regard shall be had to the fact that, if the person making an affidavit pursuant to this part is not called as a witness, there has been no opportunity to cross-examine the person, and to all the circumstances from which any inference may reasonably be drawn as to—

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

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

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

126Provisions of part are alternative

The provisions of this part shall be construed as in aid of and as alternative to any provision of any other part, any other law or any practice or usage with respect to the production to a court or the admissibility in evidence in a proceeding of reproductions of documents.

128Regulation may exclude application of provisions

A regulation may declare that this part, or a provision of this part, does not apply to a document.

129Public Records Act 2002 not affected

This part does not affect the Public Records Act 2002 .

Part 8 Miscellaneous

129AOrder that evidence may be given in a different way

(1)This section applies in a proceeding that is not a criminal proceeding if either—

(a)the fact in issue is any of the following—

(i)the proof of handwriting;

(ii)the proof of documents;

(iii)the proof of the identity of parties;

(iv)the proof of authority; or

(b)a court considers—

(i)a fact in issue is not seriously in dispute; or

(ii)strict proof of a fact in issue might cause unnecessary or unreasonable expense, delay or inconvenience in a proceeding.

(2)The court may order that evidence of the fact may be given at the trial, or any other stage of the proceeding, in any way the court directs.

(3)Without limiting subsection (2), the court may order that evidence of a fact be given by—

(a)a statement on oath of information and belief; or

(b)the production of documents or entries in records; or

(c)the production of copies of documents or copies of entries in records.

(4)The court may at any time vary or revoke an order made under this section.

129BPerson may be examined without subpoena or other process

(1)A court may order a person who is present at the hearing of a proceeding and compellable to give evidence in the proceeding to give evidence or to produce a document or thing even if a subpoena or other process requiring the person to attend for that purpose has not been duly served on the person.

(2)If ordered to give evidence or to produce a document or thing, the person is subject to the same penalties and liabilities as if the person had been duly served with a subpoena or other process.

130Rejection of evidence in criminal proceedings

Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.

131Witnesses for defence to be sworn

(1)In a criminal proceeding, any person who gives evidence on behalf of the defence shall first take an oath in such manner as the person would by law be obliged to do if the person were a witness for the prosecution.

(2)Subsection (1) is subject to part 2 , division 1A .

131ACourt may order interpreter to be provided

In a criminal proceeding, a court may order the State to provide an interpreter for a complainant, defendant or witness, if the court is satisfied that the interests of justice so require.

132Actions for breach of promise of marriage

The plaintiff in an action for breach of promise of marriage shall not recover a verdict unless the plaintiff’s testimony is corroborated by some other material evidence in support of such promise.

132AAdmissibility of similar fact evidence

In a criminal proceeding, similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, must not be ruled inadmissible on the ground that it may be the result of collusion or suggestion, and the weight of that evidence is a question for the jury, if any.

132BEvidence of domestic violence

(1)This section applies to a criminal proceeding against a person for an offence defined in the Criminal Code , chapters 28 to 30.

(2)Relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding.

(3)In this section—

domestic relationship means a relevant relationship under the Domestic and Family Violence Protection Act 2012 , section 13 .

Note—

Under the Domestic and Family Violence Protection Act 2012 , section 13 , a relevant relationship means an intimate personal relationship, a family relationship or an informal care relationship, as defined under that Act.

132CFact finding on sentencing

(1)This section applies to any sentencing procedure in a criminal proceeding.

(2)The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.

(3)If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.

(4)For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.

(5)In this section—

allegation of fact includes the following—

(a)information under the Penalties and Sentences Act 1992 , section 15 or evidence given at a hearing in relation to an order under part 3A of that Act;

(b)information under the Youth Justice Act 1992 , section 150 (3) or in a pre-sentence report under section 151 of that Act;

(c)information given to the court under the Penalties and Sentences Act 1992 , section 179K;

(d)other information or evidence.

133Impounding documents

Where a document has been tendered or produced before a court, the court may, whether or not the document is admitted in evidence, direct that the document shall be impounded and kept in the custody of an officer of the court or of another person for such period and subject to such conditions as the court thinks fit.

133ADNA analysts

(1)The chief executive of the department within which the Hospital and Health Boards Act 2011 is administered, if satisfied the officer has the necessary qualifications and experience to be a DNA analyst, may appoint as a DNA analyst—

(a)a public service officer employed in the department; or

(b)a health service employee employed in the department under the Hospital and Health Boards Act 2011 .

(2)The appointment takes effect on the day it is notified in the gazette.

(3)Subsection (4) applies if the commissioner of the police service has entered into a DNA arrangement with a laboratory under the Police Powers and Responsibilities Act 2000 , section 488B (1) .

(4)The chief executive officer, however described, of the laboratory may, by written notice, appoint an employee of the laboratory as a DNA analyst if satisfied the employee has the necessary qualifications and experience to be a DNA analyst.

(5)The appointment takes effect—

(a)on the day the notice is given to the employee; or

(b)if a later day is stated in the notice, the later day.

134Power to appoint a government printer

The Governor in Council may appoint a government printer for the State.

134AProduction of documents by agencies in relation to civil proceedings

(1)A person who is a party to a civil proceeding may make written application to the principal officer of an agency to produce for inspection a document that—

(a)is in the possession of, or under the power of, the agency; and

(b)is relevant to an issue in the proceeding;

if the agency, the principal officer, or a member, officer or employee of the agency, could be ordered, on the application of the person, to produce the document in the proceeding.

(2)The principal officer may permit the person, on payment of the prescribed fee, to inspect the document, and take a copy of, or an extract from, the document, at a time and place nominated by the principal officer.

(3)If the principal officer permits the person to inspect and take a copy of, or an extract from, the document, the principal officer, and all persons acting on behalf of the principal officer, are entitled to the same protection as they would have had if the acts concerned had been carried out in obedience to a process of the Supreme Court.

(4)The principal officer is not required to notify another party to the proceeding of—

(a)the making of the application; or

(b)any action taken in relation to the application.

(4A)The principal officer may delegate his or her powers under this section to an officer or employee of the principal officer’s agency.

(4B)Also, the principal officer of a public safety entity under the Public Safety Business Agency Act 2014 may delegate the officer’s powers under this section to an appropriately qualified person in the Public Safety Business Agency.

(5)Subject to subsection (6), this section does not affect—

(a)the operation of any law relating to the disclosure or nondisclosure of information; or

(b)the operation of another law that authorises the inspection or copying of a document otherwise than as provided in this section; or

(c)the power of a court to order the inspection or production of a document.

(6)If a document mentioned in subsection (1) is a document that contains information to which the Hospital and Health Boards Act 2011 , section 142 (1) applies, the document is, for the purposes of section 143 of that Act, information that is required or permitted to be given under this Act.

(7)In this section—

agency means—

(a)a department; or

(b)a public authority, other than a prescribed entity, within the meaning of the Right to Information Act 2009 , section 16 ; or

(c)a person or body declared by regulation to be an agency;

but does not include a person or body declared by regulation not to be an agency.

principal officer means—

(a)in relation to a department—the chief executive of the department; or

(b)in relation to an agency for which a regulation declares an officer to be the principal officer—the holder of the office; or

(c)in relation to another agency—

(i)if it is an incorporated body that has no members—the person who manages the body’s affairs; or

(ii)if it is a body (whether or not incorporated) that is constituted by 1 person—the person; or

(iii)if it is a body (whether or not incorporated) that is constituted by 2 or more persons—the person who is entitled to preside at a meeting of the body at which the person is present.

134BApproval of forms

(1)The chief executive may approve forms for—

(a)anything for which this Act requires or permits an approved form to be used; or

(b)another use under this Act.

(2)Subsection (1)(b) does not apply to forms for court proceedings.

135Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)A regulation may be made about—

(a)fees to be charged under this Act; or

(b)the payment of fees and expenses for, or incurred in, taking evidence under part 3 , division 2 .

Part 9 Transitional and declaratory provisions

Division 1 Evidence Amendment Act 2000

136Transitional—Evidence Amendment Act 2000

(1)Section 132C applies to a sentencing procedure regardless of whether the offence or the conviction for the offence giving rise to the sentencing procedure happened before or after the commencement of this section.

(2)In this section—

conviction means a finding of guilt, or the acceptance of a plea of guilty, by a court.

sentencing procedure means a sentencing procedure started after the commencement of this section.

Division 1A Justice and Other Legislation Amendment Act 2003

136ADeclaratory provision for Justice and Other Legislation Amendment Act 2003

To remove any doubt, it is declared that the chief executive (premiers) has always had the powers mentioned in section 58 (1) and (2).

Division 2 Evidence (Protection of Children) Amendment Act 2003

137Definitions for div 2

In this division—

amending Act means the Evidence (Protection of Children) Amendment Act 2003 .

commencement day means—

(a)for section 138 —the day the amending Act, section 56 commences; or

(b)for section 139 —the day the amending Act, section 57 commences; or

(c)for sections 140 , 141 and 142 —the day the amending Act, section 60 commences.

originating step, for a proceeding, means—

(a)the arrest of the defendant in the proceeding; or

(b)the making of a complaint under the Justices Act 1886 , section 42 in relation to the defendant in the proceeding; or

(c)the serving of a notice to appear on the defendant in the proceeding under the Police Powers and Responsibilities Act 2000 , section 382 .

138Communications between a husband and wife

Section 8 (3) applies to communications whether made before or after the commencement day.

139Evidence admitted under repealed s 9

(1)Section 9D applies to evidence admitted before the commencement day under repealed section 9 as if the evidence had been admitted under section 9A .

(2)In this section—

repealed section 9 means section 9 as in force before the commencement day.

140Committal proceeding

Part 2 , division 4A , subdivision 2 applies to a committal proceeding only if an originating step for the proceeding is taken on or after the commencement day.

141Prerecording of evidence for a summary trial

Part 2 , division 4A , subdivision 3 applies to a summary trial for a relevant offence only if an originating step for the proceeding is taken on or after the commencement day.

142Prerecording of evidence for a trial on indictment

Part 2 , division 4A , subdivision 3 applies to a trial on indictment for a relevant offence only if the indictment is presented on or after the commencement day.

Division 3 Cross-Border Law Enforcement Legislation Amendment Act 2005

143Witness anonymity certificates

(1)This section applies to a witness anonymity certificate given under section 21D of the pre-amended Act.

(2)The prescribed sections continue to apply in relation to the witness anonymity certificate as if the Cross-Border Law Enforcement Legislation Amendment Act 2005 , part 3 had not commenced.

(3)In this section—

pre-amended Act means this Act as in force before the commencement of the Cross-Border Law Enforcement Legislation Amendment Act 2005 , part 3.

prescribed sections means sections 21B to 21J of the pre-amended Act.

Division 4 Justice and Other Legislation Amendment Act 2005

144Statement made before proceeding by child or person with an impairment of the mind

(1)To remove any doubt, it is declared that amended section 93A applies to a proceeding that starts after the commencement of this section, regardless of when the conduct giving rise to the proceeding happened.

(2)A statement admitted into evidence in a proceeding before the commencement of this section that would be admissible under the amended section 93A if tendered in a proceeding after the commencement is taken to have always been admissible under section 93A .

(3)In this section—

amended section 93A means section 93A as amended by the Justice and Other Legislation Amendment Act 2005 .

proceeding includes a committal, a preliminary hearing, a trial and any rehearing or retrial arising out of, or any appeal from, an earlier proceeding.

145Definition chief executive (surveys)

It is declared that the amendment of the definition chief executive (surveys) by the Surveyors Act 2003 is, and has always been, as effective as it would have been if the definition had been located in schedule 3 rather than section 3 when the amendment commenced.

Division 5 Criminal Code and Other Acts Amendment Act 2008

146References to particular Criminal Code offences

(1)The definition offence involving violence in section 21AC applies as if it included a reference to the Criminal Code , sections 319A , 331 and 332 as in force at any time before their repeal by the amending Act.

(2)The definition prescribed offence in section 21M (3) applies as if it included a reference to the Criminal Code , section 338 as in force at any time before its repeal by the amending Act.

(3)The definition prescribed offence in section 21M (3) applies as if the reference to the Criminal Code , section 415 included a reference to the Criminal Code , sections 415 , 416 and 417 as in force at any time before their repeal by the amending Act.

(4)The definition prescribed special offence in section 21M (3) applies as if the reference to the Criminal Code , section 208 included a reference to the Criminal Code , section 209 as in force at any time before its repeal by the amending Act.

(5)In this section—

amending Act means the Criminal Code and Other Acts Amendment Act 2008 .

Division 6 Health and Other Legislation Amendment Act 2016

147Prescribed special offence taken to include references to Criminal Code , ss 208 and 209

The definition prescribed special offence in section 21M (3) applies as if it included a reference to—

(a)the Criminal Code , section 208 as in force at any time before its repeal by the Health and Other Legislation Amendment Act 2016 ; and

(b)the Criminal Code , section 209 as in force at any time before its repeal by the Criminal Code and Other Acts Amendment Act 2008 .

Division 7 Serious and Organised Crime Legislation Amendment Act 2016

148Special witnesses

An order or direction made or given under section 21A before the commencement continues to have effect as an order or direction made or given under the section as amended by the Serious and Organised Crime Legislation Amendment Act 2016 .

Division 8 Criminal Law Amendment Act 2017

149Definition for division

In this division—

amendment Act means the Criminal Law Amendment Act 2017 .

150Admissibility of particular copies of videorecordings made before commencement

Sections 21A, 21AM and 21AQ, as amended by the amendment Act, apply, and are taken always to have applied, to a copy of a videorecording on a separate data storage medium that was made before the commencement.

151Destruction of recordings made before commencement

Part 2 , division 4B , subdivision 3 , as inserted by the amendment Act, applies in relation to a recording whether the recording was made before or after the commencement.

152Application of DNA evidentiary certificate provision to proceedings started before commencement

Section 95A , as amended by the amendment Act, applies to a criminal proceeding whether the proceeding was started before or after the commencement.

Division 9 Victims of Crime Assistance and Other Legislation Amendment Act 2017

153Sexual assault counselling privilege

(1)Part 2 , division 2A applies to a proceeding for an offence, or a domestic violence proceeding, only if an originating step for the proceeding is taken on or after the commencement.

(2)Subsection (1) applies—

(a)for an offence—whether the act or omission constituting the offence happened before or after the commencement; or

(b)for a domestic violence proceeding—whether the ground for making the domestic violence order the subject of the proceeding arose before or after the commencement.

(3)In this section—

domestic violence proceeding means a proceeding relating to a domestic violence order under the Domestic and Family Violence Protection Act 2012 .

originating step, for a proceeding for an offence or a domestic violence proceeding, means—

(a)the arrest of the defendant in the proceeding; or

(b)the making of a complaint under the Justices Act 1886 , section 42 in relation to the defendant in the proceeding; or

(c)the serving of a notice to appear on the defendant in the proceeding under the Police Powers and Responsibilities Act 2000 , section 382 ; or

(d)the making of an application for, or the making of a decision by a court to make, the domestic violence order the subject of the proceeding.

Schedule 1 Examples of offices of a public nature established under an Act

section 42

1Auditor-general

2Chairperson of the CCC

3Chief executive of a department

4Chief executive officer of a local government

5Clerk of the Parliament

6Commissioner of the police service

7Director of public prosecutions

8Electoral commissioner

9Information commissioner

10Mayor of a local government

11Parliamentary counsel

12Public trustee

13Ombudsman

14Registrar-general

15Registrar of titles

16Solicitor-general

Schedule 3 Dictionary

section 3

affected child, for part 2 , division 4A , see section 21AC .

affidavit, for part 7 , see section 104 .

approved form see section 134B .

assumed name, for part 2 , division 5 , see section 21C .

audio link, for part 3A , see section 39C .

audio visual link means facilities, including closed-circuit television, that enable reasonably contemporaneous and continuous audio and visual communication between persons at different places.

authorised destruction day, for part 2 , division 4B , see section 21AZF (1).

before, for part 3A , see section 39C .

book of account, for part 5 , division 6 , see section 83 .

business, for part 7 , see section 104 .

CCC, for part 2 , division 5 , see section 21C .

chief executive officer, for part 2 , division 5 , see section 21C .

chief executive (surveys) means the chief executive of the department in which the Surveyors Act 2003 is administered.

child, for part 2 , division 4A , see section 21AD .

civil proceedings, for part 3 , division 3 , see section 35 .

conduct, for part 2 , division 5 , see section 21C .

convicted, for part 2 , division 5 , see section 21C .

conviction, for part 5 , division 5 , see section 78 .

copy, of a document, see section 4 .

corresponding court, for part 3 , division 2 , see section 25 .

corresponding law, for part 2 , division 5 , see section 21C .

corresponding witness identity protection certificate, for part 2 , division 5 , see section 21C .

corruption, for part 2 , division 5 , see section 21C .

counsel, a person for part 2 , division 2A , see section 14B .

counsel, for part 2 , division 4A , see section 21AC .

counselled person, for part 2 , division 2A , see section 14B .

counsellor, for part 2 , division 2A , see section 14B .

court—

(a)for part 5 , division 5 —see section 78 ; or

(b)for part 5 , division 6 —see section 83 ; or

(c)otherwise—means the court, tribunal, judge, justice, arbitrator, body or person before whom or which a proceeding is held or taken.

court location, for part 3A , see section 39C .

court name, for part 2 , division 5 , see section 21C .

criminal activity, for part 2 , division 5 , see section 21C .

criminal proceeding includes a proceeding wherein a person is charged with a simple offence, and an examination of witnesses in relation to an indictable offence.

defendant, for part 2 , division 4A , see section 21AC .

document includes, in addition to a document in writing—

(a)any part of a document in writing or of any other document as defined herein; and

(b)any book, map, plan, graph or drawing; and

(c)any photograph; and

(d)any label, marking or other writing which identifies or describes anything of which it forms part, or to which it is attached by any means whatever; and

(e)any disc, tape, soundtrack or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(f)any film, negative, tape or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(g)any other record of information whatever.

essential person, for a proceeding for part 2 , division 2A , see section 14B .

examiner, for part 3 , division 2 , see section 25 .

external location, for part 3A , see section 39C .

film includes a microfilm.

gazette includes any gazette, or part of a gazette, published by the government printer.

Example—

Queensland Government Gazette

investigation, for part 2 , division 5 , see section 21C .

judge means the member or members of a court.

judicial officer means a judge, magistrate or justices.

law enforcement agency, for part 2 , division 5 , see section 21C .

lawfully edited copy—

(a)of a videorecording of evidence given by a special witness or an affected child—means a copy of the videorecording that has been edited or otherwise changed under an approval given under section 21AZ ; or

(b)of a usable soundtrack of a videorecording containing the evidence of a special witness or an affected child—means a copy of the usable soundtrack of the videorecording that has been edited or otherwise changed under an approval given under section 21AZ .

machine copy, for part 7 , see section 104 .

minimum retention period, for part 2 , division 4B , see section 21AZE (4)(a).

offence involving violence, for part 2 , division 4A , see section 21AC .

offence of a sexual nature, for part 2 , division 4A , see section 21AC .

operative, for part 2 , division 5 , see section 21C .

original document, for part 7 , see section 104 .

overseas country—

(a)for part 3 , division 3 —see section 35 ; or

(b)for part 5 , division 3 —see section 67 .

participating State, for part 3A , see section 39C .

party, for part 2 , division 5 , see section 21C .

person with an impairment of the mind means a person with a disability that—

(a)is attributable to an intellectual, psychiatric, cognitive or neurological impairment or a combination of these; and

(b)results in—

(i)a substantial reduction of the person’s capacity for communication, social interaction or learning; and

(ii)the person needing support.

police service means the Queensland Police Service.

preliminary hearing, for part 2 , division 4A , see section 21AC .

prescribed country, for part 3 , division 2 , see section 25 .

presiding judicial officer, for part 2 , division 4B , see section 21AY .

principal registrar, of a court, means—

(a)for a Magistrates Court—the person holding appointment as the principal registrar of Magistrates Courts mentioned in the Magistrates Courts Act 1921 , section 3A(2); or

(b)for the District Court—the person appointed as the principal registrar under the District Court of Queensland Act 1967 , section 36(1); or

(c)for the Supreme Court—the person appointed as the principal registrar under the Supreme Court of Queensland Act 1991 , section 69(1).

proceeding—

(a)for part 2 , division 4A —see section 21AC ; or

(b)otherwise—means any civil, criminal or other proceeding or inquiry, reference or examination in which by law or by consent of parties evidence is or may be given, and includes an arbitration.

protected counselling communication, for part 2 , division 2A , see section 14A .

protected witness, for part 2 , division 6 , see section 21M .

Queensland court, for part 3A , see section 39C .

recognised court, for part 3A , see section 39C .

recording, for part 2 , division 4B , see section 21AY .

relevant court, for part 2 , division 5 , see section 21C .

relevant offence, for part 2 , division 4A , see section 21AC .

relevant proceeding, for part 2 , division 4A , see section 21AC .

relevant witness, for part 2 , division 4AA , see section 21AXC (1)(a).

religious representative, for part 2 , division 2A , see section 14B .

reproduce, for part 7 , see section 104 .

reproduction, for part 7 , see section 104 .

request, for part 3 , division 3 , see section 35 .

requesting court, for part 3 , division 3 , see section 36 .

sexual assault offence, for part 2 , division 2A , see section 14B .

special witness see section 21A .

statement includes any representation of fact, whether made in words or otherwise and whether made by a person, computer or otherwise.

statute, for part 5 , division 3 , see section 67 .

telegraph means a system of telecommunication operated under Commonwealth law.

telegraphic message means any message or other communication transmitted or intended for transmission or purporting to have been transmitted by telegraph.

telegraph office means an office or place established or used for receiving or transmitting telegraphic messages.

transparency, for part 7 , see section 104 .

tribunal, for part 3A , see section 39C .

undertaking includes public administration and any business, profession, occupation, calling, trade or undertaking whether engaged in or carried on—

(a)by the Crown (in right of the State of Queensland or any other right), or by a statutory body, or by any other person; or

(b)for profit or not; or

(c)in Queensland or elsewhere.

usable soundtrack, of a videorecording, see section 21AXB .

videorecorded means recorded as a videorecording.

videorecording means a recording, including the accompanying soundtrack, on any medium from which a moving image may be produced by any means.

witness identity protection certificate, for part 2 , division 5 , see section 21C .

ENCYCLOPEDIA, EVIDENCE

Reopening of Evidence by Civil Court-[Indian Law Encyclopedia]

Tanmoy
Supreme Court of India in K.K. Velusamy vs N. Palaanisamy, decided on 30 March, 2011, held:-

 

8. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. [Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate- 2009 (4) SCC 410]. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in- chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.

9. There is no specific provision in the Code enabling the parties to re- open the evidence for the purpose of further examination-in-chief or cross- examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re- open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.

ENCYCLOPEDIA, EVIDENCE

Electronically recorded conversation-Admissibility [Indian Law Encyclopedia]

Tanmoy
Supreme Court of India in K.K. Velusamy vs N. Palaanisamy on 30 March, 2011 held : 

“The amended definition of “evidence” in section 3 of the Evidence Act, 1872 read with the definition of “electronic record” in section 2(t) of the Information Technology Act 2000, includes a compact disc containing an electronic record of a conversation. Section 8 of Evidence Act provides that the conduct of any party, or of any agent to any party, to any suit, in reference to such suit, or in reference to any fact in issue therein or relevant thereto, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. In R.M Malkani vs. State of Maharastra – AIR 1973 SC 157, this court made it clear that electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation. This Court further held that a contemporaneous electronic recording of a relevant conversation is a relevant fact comparable to a photograph of a relevant incident and is admissible as evidence under Section 8 of the Act. There is therefore no doubt that such electronic record can be received as evidence”.

CIVIL, EVIDENCE

Law of Evidence [General]

volumevolumevolumevolumevolumevolumevolumevolumevolumevolume

Chapter 1: Admissibility and Relevancy of Evidence;

Chapter 2: Burden of Proof;

Chapter 3: Proof – Presumptions;

Chapter 4: Standard of Proof – Differences between Averment and Proof;

Chapter 5: Sufficiency of Evidence;

Chapter 6: Circumstantial Evidence – Examples of its Nature and Effect;

Chapter 7: Relevancy of Evidence – Character and Collateral Issues;

Chapter 8: Hearsay;

Chapter 9: Admissibility of Evidence of Extra-Judicial Admissions and Confessions;

Chapter 10: Confidentiality;

Chapter 11: Proof – Where Evidence is Excluded;

Chapter 12: Oral Evidence – General;

Chapter 13: Oral Evidence – Specialities of Witnesses;

Chapter 14: Evidence on Commission;

Chapter 15: Affidavits, Reports and Dying Depositions;

Chapter 16: Opinion Evidence;

Chapter 17: Access to Witnesses and Securing Their Attendance;

Chapter 18: Real Evidence;

Chapter 19: Public and Official Documents;

Chapter 20: Proof of Terms of Documents Not Produced;

Chapter 21: Recovery and Production of Documents;

Chapter 22: Requirements of Writing for Self-Proving or Probative Deeds;

Chapter 23: Matters that Required Writing for their Constitution

Chapter 24: Informal Writings  in Commercial Matters and in Proof of Obligations Generally;

Chapter 25: Proof of Actings to Perfect Proof of Obligations – Personal Bar, Rei Interventus and Homologation;

Chapter 26: Evidence Extrinsic to Writings;

Chapter 27: Proof in Family Actions;

Chapter 28: Proof in Proceedings Concerning Children – Public Law.

CIVIL, EVIDENCE

Admissibility of the evidence concerning discovery of fact due to disclosure made by an accused in custody

Judgment updates

Admissibility of the evidence concerning discovery of fact pursuant disclosure made by an accused in custody, reliance Could be placed on Jafar Hussain Dastagir Vs. State of Maharashtra, (1969) 2 SCC 872 and State of UP vs. Jageshwar and Ors, (1983) 2 SCC 305 to argue that since the police was already in possession of the pistol, it having been seized from the possession of Sanjay @ Sanju @ Khatta, the facts concerning the said evidence could not be treated as one discovered pursuant to disclosure by the appellant Sonveer @ Pinku (A-3). In this context, reference was also made to the view taken by this court in Chandrakant Jha Vs. State (GNCT) of Delhi, Crl. Appeal No.655/2013 and death reference no.3/2013, decided on 27.01.2016.

 Section 25 of the Evidence Act prohibits evidence to be led as to confession made by an accused to a police officer, its object being to ensure that no one is induced by any threat, coercion or force to make a confessional statement about complicity in crime in as much as to do so would be in breach of the fundamental right against self-incrimination as guaranteed by Article 20(3) of the Constitution of India. Section 26 of the Evidence Act expands the said prohibition by stipulating that a confession made in the custody of police shall not be proved against the marker unless it is made in the immediate presence of a Magistrate.

Section 27 of the Evidence Act, however, carves out an exception to the general rule and partially lifts the inhibition contained in Section 25 and 26, the provision reading thus :-

“27. How much of information received from accused may be proved:

Provided that when any fact is deposed to as discovered in consequences of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether if amounts to a confessions or not, as relates distinctly to the fact thereby discovered, may be proved.”

Since the expression “fact” is crucial to Section 27 of Evidence Act, its meaning as given in Section 3 also needs to be noted as under :-

“Fact” – “Fact” means and includes-

(1) any thing, state of things, or relation of things, capable of being perceived by the sense;

(2) any mental condition of which any person is conscious.

165. In Rakesh Vs. State, GNCT of Delhi, (2016) 227 DLT 92 (DB), a division bench of this court of which one of us (R.K. Gauba, J.) was a party had the occasion to take note of the development of law concerning interpretation of Section 27 of Evidence Act. The following paragraphs from the judgment in the said case may be extracted :-

“40. The provision contained in Section 27 of the Evidence Act has been the subject-matter of a series of authoritative and illuminating pronouncements, the earliest landmark decision being one reported as Pulukuri Kotayya vs. EmperorAIR 1947 PC 67, the exposition of law therein in the following words having ever since been treated as locus classicus:-

“It is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to his discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of the knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”

41. In Mohd. Inayatullah vs. The State of Maharashtra, (1976) 1 SCC 828, it was held that the expression ‘fact discovered’ includes not only the physical object produced but also the place from which it is produced and the knowledge of the accused as to the same. Interpreting the words “so much of such information …. as relates distinctly to the fact thereby discovered “, the court held that the word “distinctly” means “directly”, “indubitably”, “strictly” or “unmistakably”. The word has been advisedly used to limit and define the scope of provable information. The phrase “distinctly” relates “to the fact thereby discovered”. The phrase refers to that part of the information supplied by the accused which is the direct cause of discovery of a fact. The rest of the information has to be excluded.

42. In State of Maharashtra vs. Damu Gopinath Shinde and others, (2000) 6 SCC 269, the law was summarised thus:-

“35. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 74 IA 65] is the most quoted authority for supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.

36. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which “distinctly relates to the fact thereby discovered”. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability…”

43. In State vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600 while examining the issue as to whether discovery of fact referred to in Section 27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto or the discovery should be in respect of his mental state or knowledge in relation to certain things – concrete or non-concrete, the Supreme Court traced the jurisprudential development on the subject and observed that:-

“125. We are of the view that Kottaya case [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is an authority for the proposition that “discovery of fact” cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place”.

44. Pertinently, this decision also refers to ambit and scope of Section 8 of the Evidence Act and quotes with approval the following passage from Prakash Chand vs. State (Delhi Administration) AIR 1979 Sc 400, in two paragraphs extracted as under :

“190. ……It would be admissible under Section 8 of the Evidence Act as a piece of evidence relating to the conduct of the accused person in identifying the dead bodies of the terrorists. As pointed out by Chinnappa Reddy, J. in Prakash Chand v. State (Delhi Admn.): (SCC p. 95, para 8) “There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by Section 162, Criminal Procedure Code. What is excluded by Section 162, Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act (vide H.P. Admn. v. Om Prakash).”

206. We have already noticed the distinction highlighted in Prakash Chand case between the conduct of an accused which is admissible under Section 8 and the statement made to a police officer in the course of an investigation which is hit bySection 162 CrPC. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where stolen articles or weapons used in the commission of the offence were hidden, would be admissible as “conduct” under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct, falls within the purview of Section 27, as pointed out in Prakash Chand case. In Om Prakash case this Court held that: (SCC p. 262, para 14) “[E]ven apart from the admissibility of the information under Section 27, the evidence of the investigating officer and the panchas that the accused had taken them to PW 11 (from whom he purchased the weapon) and pointed him out and as corroborated by PW 11 himself would be admissible under Section 8 of the Evidence Act as conduct of the accused…”

166. Taking note of certain other cases – (Ranjeet Kumar Ram @ Ranjeet Kumar Das vs. State of Bihar, 2015 SCC Online SC 500; AIR 2015 SC (suppl) 1374 and Mehboob Ali vs. State of Rajasthan, 2015 SCC Online SC 1043; 2015 AIR SCW 6123; and Anuj Kumar Gupta vs. State of Bihar, (2013) 12 SCC 383 – this court summarised the legal position in Rakesh Vs. State (supra) as under :-

51. It is well settled that the bar against admissibility of what is prohibited by Sections 25 and 26 of the Evidence Act is partially lifted by Section 27 in respect of such information given by accused to the police as relates distinctly to the discovery of a “fact” thus far unknown; this, subject to the riders of the information being immediate and proximate cause of discovery and the discovered fact being relevant to prove his complicity through confirmation by subsequent events. We have also quoted observations of the Supreme Court in Navjot Sandhu (supra) referring to Section 8 of the Evidence Act. The contours of the said provision are wider. It is sufficient if the information given by the accused provides the lead to the Investigating Officer to unravel facts and material which were not known to him and which could not have been known but for such information coming from the accused. Further, in a given case when established the relevant facts discovered consequent to the information given by the accused may not lead to recovery directly from the person or the place towards which the information given by the accused pointed. The fact that there was an intermediate person respecting whom the accused made the disclosure and who, in turn, leads to the discovery and recovery does not disrupt the elements of immediacy and proximity; this, so long as the special knowledge of the accused with regard to the fact eventually discovered can be gathered from the circumstances, since that is what provides the requisite confirmation of what was initially disclosed…”

CIVIL, EVIDENCE

PLEA OF ALIBI

SUPREME COURT

The plea of alibi in based on the theory that it is physically impossible for the accused to be present at a particular place at the time of commission of the offence for the reason he was present at the said point of time at another place. It is well settled that for such a plea to succeed, it is incumbent that the accused shows, by evidence, that he was so far away at the relevant point of time that he could not be present at the place alleged by the prosecution. Such a plea rests on the rule of evidence recognized in Section 11 of the Evidence Act rendering facts which are inconsistent with the fact in issue to be relevant. The law on the subject of alibi was succinctly explained by the Supreme Court in Binay Kumar Singh vs. State of Bihar (1997) 1 SCC 283 as under:-

“The Latin word alibi means ‘elsewhere’ and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would no doubt, be a sound proposition to be laid down that in su

ch circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.”

(emphasis supplied)

144. There can be no quarrel with the proposition that evidence tendered through defence witnesses cannot be appreciated on the assumption that it would generally be tainted. It is trite that defence witnesses are also entitled to equal treatment and equal respect as that of the prosecution on the issues of credibility and trustworthiness. It is also equally well settled that prosecution cannot depend on the weaknesses of the defence since the prime onus to prove its case beyond all reasonable doubts lies at its door.

[see State of Haryana Vs. Ram Singh, (2002) 2 SCC 426; Dudh Nath Pandey vs. The State of U.P., 1981 SCR (2) 771

CIVIL, EVIDENCE

Meaning of Proved

CODE OF CRIMINAL PROCEDURE

A fact is said to be proved when, after considering the matters before it,

(a) the Court either believes it to exist,

or

(b) considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

Case in (a) is indicating Direct Evidence
Case in (b) is indicating Indirect Evidence 
EVIDENCE

Evidence Law Made Easy

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LAW LIBRARY

  • Evidence before Statutory Commission
  • Evidence before the Quasi-Judicial Body
  • Evidence under Departmental Inquiry
  • Recording Evidence by the Civil Court
  • Recording evidence By the Criminal Court
 3   Evidence Law Decoded
 BULLET 2 Indian Evidence Act 1872
 SECTIONS TEXTS
Preamble
1. Short title, extent and Commencement
2. Repeal of enactments
3. Interpretation clause
4. “May presume”
5. Evidence may be given of facts in issue and relevant facts
6. Relevancy of facts forming part of same transaction
7. Facts which are the occasion, cause or effect of facts in issue
8. Motive, preparation and previous or subsequent conduct
9. Facts necessary to explain or introduce relevant facts
10. Things said or done by conspirator in reference to common design
11. When facts not otherwise relevant become relevant
12. In suits for damages, facts tending to enable Court to determine amount are relevant
13. Facts relevant when right or custom is in question
14. Facts showing existence of state of mind, or of body or bodily feeling
15. Facts bearing on question whether act was accidental or intentional
16. Existence of course of business when relevant
17. Admission defined
18. Admission by party to proceeding or his agent by suitor in representative character
19. Admissions by persons whose position must be proved as against party to suit
20. Admissions by persons expressly referred to by party to suit
21. Proof of admissions against persons making them, and by or on their behalf
22. When oral admissions as to contents of documents are relevant
22-A. When oral admission as to contents of electronic records are relevant
23. Admissions in civil cases, when relevant
24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding
25. Confession to police officer not to be proved
26. Confession by accused while in custody of police not to be proved against him
27. How much of information received from accused may be proved
28. Confession made after removal of impression caused by inducement, threat or promise relevant
29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc
30. Consideration of proved confession affecting person making it and others jointly under trial for same offence
31. Admissions not conclusive proof, but may estop
32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant
33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated
34. Entries in books of account including those maintained in an electronic form] when relevant
35. Relevancy of entry in public record or an electronic record made in performance of duty
36. Relevancy of statements in maps, charts and plans
37. Relevancy of statement as to fact to public nature, contained in certain Acts or notifications
38. Relevancy of statements as to any law contained in law-books
39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers
40. Previous judgments relevant to bar a second suit or trial
41. Relevancy of certain judgments in probate, etc., jurisdiction
42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41
43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant
44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved
45. Opinions of experts
46. Facts bearing upon opinions of experts
47. Opinion as to handwriting, when relevant
47-A. Opinion as to digital signature when relevant
48. Opinion as to existence of right or custom, when relevan
49. Opinion as to usages, tenets, etc., when relevant
50. Opinion or relationship, when relevant
51. Grounds of opinion, when relevant
52. In civil cases character to prove conduct imputed, irrelevant
53. In criminal cases, previous good character relevant
54. Previous bad character not relevant, except in reply
55. Character as affecting damages
56. Fact judicially noticeable need not be proved
57. Facts of which Court must take judicial notice
58. Facts admitted need not be proved
59. Proof of facts by oral evidence
60. Oral evidence must be direct
61. Proof of contents of documents
62. Primary evidence
63. Secondary evidence
64. Proof of documents by primary evidence
65. Cases in which secondary evidence relating to documents may be given
65-A. Special provisions as to evidence relating to electronic record
65-B. Admissibility of electronic records
66. Rules as to notice to produce
67. Proof of signature and handwriting of person alleged to have signed or written document produced
67-A. Proof as to digital signature
68. Proof of execution of document required by law to be attested
69. Proof where no attesting witness found
70. Admission of execution by party to attested document
71. Proof when attesting witness denies the execution
72. Proof of document not required by law to be attested
73. Comparison of signature, writing or seal with others admitted or proved
73-A. Proof as to verification of digital signature
74. Public documents
75. Private documents
76. Certified copies of public documents
77. Proof of documents by production of certified copies
78. Proof of other official documents
79. Presumption as to genuineness of certified copies
80. Presumption as to documents produced as record of evidence
81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents
81-A. Presumption as to Gazettes in electronic forms
82. Presumption as to document admissible in England without proof of seal or signature
83. Presumption as to maps or plans made by authority of Government
84. Presumption as to collections of laws and reports of decisions
85. Presumption as to power-of-attorney
85-A. Presumption as to electronic agreements the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records
87. Presumption as to books, maps and charts
88. Presumption as to telegraphic messages
88-A. Presumption as to electronic messages
89. Presumption as to due execution, etc. of documents not produced
90. Presumption as to documents thirty years old
90-A. Presumption as to electronic records five years old
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document
92. Exclusion of evidence of oral agreement
93. Exclusion of evidence to explain or amend ambiguous document
94. Exclusion of evidence against application of document to existing facts
95. Evidence as to document unmeaning in reference to existing facts
96. Evidence as to application of language which can apply to one only of several persons
97. Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies
98. Evidence as to meaning of illegible characters, etc
99. Who may give evidence of agreement varying term of document
100. Saving of provisions of Indian Succession Act relating to wills
101. Burden of proof
102. On whom burden of proof lies
103. Burden of proof as to particular fact
104. Burden of proving fact to be proved to make evidence admissible
105. Burden of proving that case of accused comes within exceptions
106. Burden of proving fact especially within knowledge
107. Burden of proving death of person known to have been alive within thirty years
108. Burden of proving that person is alive who has not been heard of for seven years
109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent
110. Burden of proof as to ownership
111. Proof of good faith in transactions where one party is in relation of active confidence
111-A. Presumption as to certain offences
112. Birth during marriage, conclusive proof of legitimacy
113. Proof of cession of territory
113-A. Presumption as to abetment of suicide by a married woman
113-B. Presumption as to dowry death
114. Court may presume existence of certain facts
114-A. Presumption as to absence of consent in certain prosecutions for rape
115. Estoppel
116. Estoppel of tenant; and of licensee of person in possession
117. Estoppel of acceptor of bill of exchange, bailee or licensee
118. Who may testify
119. Dumb witnesses
120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial
121. Judges and Magistrates
122. Communications during marriage
123. Evidence as to affairs of State
124. Official communications
125. Information as to commission of offences
126. Professional communications
127. Section 126 to apply to interpreters, etc
128. Privilege not waived by volunteering evidence
129. Confidential communications with legal advisers
130. Production of title-deeds of witness not a party
131. Production of documents or electronic records which another person, having possession, could refuse to produce
132. Witness not excused from answering on ground that answer will criminate
133. Accomplice
134. Number of witnesses
135. Order of production and examination of witnesses
136. Judge to decide as to admissibility of evidence
137. Examination-in-chief
138. Order of examinations
139. Cross-examination of person called to produce a document
140. Witnesses to character
141. Leading questions
142. When they must not be asked
143. When they may be asked
144. Evidence as to matters in writing
145. Cross-examination as to previous statements in writing
146. Questions lawful in cross-examination
147. When witness to be compelled to answer
148. Court to decide when question shall be asked and when witness compelled to answer
149. Question not to be asked without reasonable grounds
150. Procedure of Court in case of question being asked without reasonable grounds
151. Indecent and scandalous questions
152. Questions intended to insult or annoy
153. Exclusion of evidence to contradict answers to questions testing veracity
154. Question by party to his own witness
155. Impeaching credit of witness
156. Question tending to corroborate evidence of relevant fact, admissible
157. Former statements of witness may be proved to corroborate later testimony as to same fact
158. What matters may be proved in connection with proved statement relevant under section 32 or 33
159. Refreshing memory
160. Testimony to facts stated in document mentioned in section 159
161. Right of adverse party as to writing used to refresh memory
162. Production of documents
163. Giving, as evidence, of document called for and produced on notice
164. Using, as evidence, of document production of which was refused on notice
165. Judge’s power to put questions or order production
166. Power of jury or assessors to put questions
167. No new trial for improper admission or rejection of evidence
   SCHEDULE
 BULLET 2 Glossary Indian Evidence Act 
 WHAT IS EVIDENCE?

“Article 48   All materials that prove the facts of a case shall be evidence. Evidence shall include:

  1. Physical evidence;
  2. Documentary evidence;
  3. Testimony of witnesses;
  4. Statements of victims;
  5. Statements and exculpations of criminal suspects or defendants;
  6. Expert opinions;
  7. Records of crime scene investigation, examination, identification and investigative experiments;
  8. Audio-visual materials, and electronic data.

The authenticity of evidence shall be confirmed before it can be admitted as the basis for making a decision on a verdict.”[Criminal Procedure Law of the People’s Republic of China]

Following five  materials are Relevant for the purpose of Evidence and could be proved 

1. Facts connected with the  other facts (ss 6-16)

In Sukhar v. State of U.P., (1999) 9 SCC 507, Supreme court has explained the provisions of Section 6 of the Evidence Act, 1872 observing that it is an exception to the general rule whereunder the hearsay evidence becomes admissible. However, such evidence must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” that it becomes relevant by itself.

2. Statements about the Facts(ss 17-39)

3. Decisions about the Facts(ss 40-44 )

4. Opinion on or about the Facts( ss 45-51)

5. The Character of a person concerned or connected with the facts

Due to Judicial notice or  Legal Presumption, few matters are exempted from proof although they may be the subject matter of the above five materials within ss 6-51.

The above facts are called Evidence under section 3 ⇑

Facts could be proved either -

Orally – (Direct viewership)  or

Through some concrete materials, such as

a) by written documents ( Original or Copied or Certified )

b) by electronic/ digital material ( Original  with Certification)

c) any other concrete materials ( the actual material )

by the method of Examination under oath in a court of law.
The Logic adopted in the Evidence Act is:-
  1. Some facts Exist
  2. the existence of the Facts must be proved
  3.  The Facts existed have been proved

A breaking of the above chain resulted in Disprove / not prove / dismissal of the Plaint or Acquittal of the accused.

For indirect evidence to prove a fact, following standard has been adopted by judicial fiction:-

  1. proof beyond reasonable doubt in case of criminal prosecution
  2. the standard of probability for civil prosecution

American law

Extract from – FEDERAL RULES OF EVIDENCE (TITLE 28, UNITED STATES CODE )

Rule 104. Preliminary Questions

(a) IN GENERAL. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

(b) RELEVANCE THAT DEPENDS ON A FACT. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

(c) CONDUCTING A HEARING SO THAT THE JURY CANNOT HEAR IT.
The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
(1) the hearing involves the admissibility of a confession;
(2) a defendant in a criminal case is a witness and so requests;
or
(3) justice so requires.

(d) CROSS-EXAMINING A DEFENDANT IN A CRIMINAL CASE. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.

(e) EVIDENCE RELEVANT TO WEIGHT AND CREDIBILITY. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec.1, 2011.)

Rule 301. Presumptions in Civil Cases Generally
In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains
on the party who had it originally.
(As amended Apr. 26, 2011, eff. Dec. 1, 2011.)

Rule 401. Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.
(As amended Apr. 26, 2011, eff. Dec. 1, 2011.)

Rule 402. General Admissibility of Relevant Evidence  Relevant evidence is admissible unless any of the following provides otherwise:
• the United States Constitution;
• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.
  Irrelevant evidence is not admissible.
(As amended Apr. 26, 2011, eff. Dec. 1, 2011.)

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.

The court may exclude relevant evidence if its probative value is substantially   outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
(As amended Apr. 26, 2011, eff. Dec. 1, 2011.)

Rule 602. Need for Personal Knowledge

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 26, 2011, eff. Dec. 1, 2011.)

STATEMENT. ‘‘Statement’’ means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

DECLARANT. ‘‘Declarant’’ means the person who made the statement.

HEARSAY. ‘‘Hearsay’’ means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Rule 901. Authenticating or Identifying Evidence

(a) IN GENERAL. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
(b) EXAMPLES. The following are examples only—not a complete list—of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

(5) Opinion About a Voice. An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged
speaker.

(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
(B) a particular business, if the call was made to a business   and the call related to business reasonably transacted over the telephone.

(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this kind are kept.

(8) Evidence About Ancient Documents or Data Compilations.
For a document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be;
and
(C) is at least 20 years old when offered.

(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.
(As amended Apr. 26, 2011, eff. Dec. 1, 2011.)

parliament

 

CIVIL, EVIDENCE

Appreciation of Electronics Evidence

Many CD's isolated on the white background

R.K. Anand Vs. Registrar, Delhi High Court, (2009) 8 SCC 106.
Amitabh Bagchi Vs. Ena Bagchi,
Anvar P. V. Vs. P. K. Basheer, 2014 (10) SCALE 660
Avadut Waman Kushe Vs. State of Maharashtra, 2016
Paras Jain Vs State of Raj decided on 4.07.2015 by
Bodala Murali Krishna Vs. Smt. Bodala Prathima,

Dharambir Vs. Central Bureau of Investigation (2008) DLT 289.
Salem Advocate Bar Association Vs. Union of India Media (UOI), AIR 2003 SC
EVIDENCE

How to produce Evidence

CODE OF CRIMINAL PROCEDURE

PART III (CH 7 T0 11)
PRODUCTION AND EFFECT OF EVIDENCE ( SS 101-167)
प्रासंगिक तथ्यों के परिबेसन एबम परिणाम

CHAPTER VII
OF THE BURDEN OF PROOF(ss101-114A)

101. Burden of proof— Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustrations
(a)A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime.
(b)A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true.
A must prove the existence of those facts.

102. ON WHOM BURDEN OF PROOF LIES — The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Illustrations
(a)A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father.
If no evidence were given on either side, B would be entitled to retain his possession.
Therefore the burden of proof is on A.
(b)A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved.
Therefore the burden of proof is on B.

103. Burden of proof as to particular fact— The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Illustration
(a)A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.

104. Burden of proving fact to be proved to make evidence admissible.— The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
Illustrations
(a)A wishes to prove a dying declaration by B. A must prove B’s death.
(b)A wishes to prove, by secondary evidence, the contents of a lost document.
A must prove that the document has been lost.
105. Burden of proving that case of accused comes within exceptions.— When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustrations
(a)A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.
The burden of proof is on A.
(b)A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control.
The burden of proof is on A.
(c)Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances bringing the case under section 335 lies on A.

106. Burden of proving fact especially within knowledge— When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a)When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b)A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

107. Burden of proving death of person known to have been alive within thirty years.— When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

108. Burden of proving that person is alive who has not been heard of for seven years— Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.—

109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent— When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it.

110. Burden of proof as to ownership — When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

111. Proof of good faith in transactions where one party is in relation of active confidence— Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
Illustrations
(a)The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.
(b)The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.

111A. Presumption as to certain offences —
(1) Where a person is accused of having committed any offence specified in sub-section (2), in—
(a)any area declared to be a disturbed areas under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or
(b)any area in which there has been, over a period of more than one month, extensive disturbance of the public peace,
and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contrary is shown, that such person had committed such offence.
(2) The offences referred to in sub-section (1) are the following, namely:—
(a)an offence under section 121, section 121A section 122 or section 123 of the Indian Penal Code (45 of 1860);
(b)criminal conspiracy or attempt to commit, or abatement of, an offence under section 122 or section 123 of the Indian Penal Code (45 of 1860).

112. BIRTH DURING MARRIAGE, CONCLUSIVE PROOF OF LEGITIMACY — The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

113. Proof of cession of territory— A notification in the Official Gazette that any portion of British territory has before the commencement of Part III of the Government of India Act, 1935 (26 Geo. 5, ch. 2) been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification.—

113A. Presumption as to abetment of suicide by a married woman— When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.1113A. Presumption as to abetment of suicide by a married woman.—
Explanation.— For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).

113B. PRESUMPTION AS TO DOWRY DEATH— When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.— For the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).

114. COURT MAY PRESUME EXISTENCE OF CERTAIN FACTS— The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations
The Court may presume—
(a)That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b)That an accomplice is unworthy of credit, unless he is corroborated in material particulars;
(c)That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(d)That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;
(e)That judicial and official acts have been regularly performed;
(f)That the common course of business has been followed in particular cases;
(g)That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
(h)That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;
(i)That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:—
As to illustration (a) — A shop-keeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;
As to illustration (b)—A, a person of the highest character, is tried for causing a man’s death by an act of negligence in arranging certain machinery. B , a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;
As to illustration (b)—A crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D , and the accounts corroborate each other in such a manner as to render previous concert highly improbable;
As to illustration (c)— A, the drawer of a bill of exchange, was a man of business. B , the acceptor, was young and ignorant person, completely under A’s influence;
As to illustration (d)—It is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;
As to illustration (e)—A judicial act, the regularity of which is in question, was performed under exceptional circumstances;
As to illustration (f)—The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
As to illustration (g)—A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;
As to illustration (h)—A man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;
As to illustration (i)—A bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.

114A. PRESUMPTION AS TO ABSENCE OF CONSENT IN CERTAIN PROSECUTION FOR RAPE— In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
Explanation.— In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code (45 of 1860).

Devider

CHAPTER VIII
ESTOPPEL

115. Estoppel.— When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
Illustration
A intentionally and falsely leads B to believe that certain land belongs to A , and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.
116. Estoppel of tenant; and of licensee of person in possession.— No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.
117. Estoppel of acceptor of bill of exchange, bailee or licensee.— No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorese it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or licence commenced, authority to make such bailment or grant such licence.
Explanation 1.— The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.
Explanation 2.— If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor.

Devider

CHAPTER IX
OF WITNESSES(ss118-134)

118. Who may testify— All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation.— A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
119. Witness unable to communicate verbally:- A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence:
Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be video graphed.
120. Parties to civil suit, and their wives or husbands- Husband or wife of person under criminal trial— In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.
121. Judges and Magistrates— No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any question as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.
Illustrations
(a)A, on his trial before the Court of Sessions, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court.
(b)A is accused before the Court of Sessions of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of the superior Court.
(c)A is accused before the Court of Sessions of attempting to murder a police officer whilst on his trial before B, a Sessions Judge. B may be examined as to what occurred.
122. Communications during marriage — No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.
123. Evidence as to affairs of State — No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
124. Official communications — No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.
125. Information as to commission of offences — No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.
Explanation.— “Revenue officer” in this section means an officer employed in or about the business of any branch of the public revenue.
126. Professional communications — No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure—
(1) Any such communication made in furtherance of any illegal purpose;
(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.
Explanation.— The obligation stated in this section continues after the employment has ceased.
Illustrations
(a)A, a client, says to B, an attorney—“I have committed forgery, and I wish you to defend me”.
As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.
(b)A, a client, says to B, an attorney—“I wish to obtain possession of property by the use of a forged deed on which I request you to sue”.
This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.
(c)A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A’s account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.
127. Section 126 to apply to interpreters, etc — The provisions of section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys, and vakils.
128. Privilege not waived by volunteering evidence — If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; and if any party to a suit or proceeding calls any such barrister,
pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.—
129. Confidential communications with legal advisers — No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.
130. PRODUCTION OF TITLE-DEEDS OF WITNESS NOT A PARTY — No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.
131. PRODUCTION OF DOCUMENTS OR ELECTRONIC RECORDS WHICH ANOTHER PERSON, HAVING POSSESSION, COULD REFUSE TO PRODUCE — No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession, or control, unless such last-mentioned person consents to their production.
132. WITNESS NOT EXCUSED FROM ANSWERING ON GROUND THAT ANSWER WILL CRIMINATE — A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:
(Proviso)—Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
133. ACCOMPLICE— An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
134. Number of witnesses — No particular number of witnesses shall, in any case, be required for the proof of any fact.

Devider

CHAPTER X
OF THE EXAMINATION OF WITNESSES (ss135-166)

CHAPTER X
OF THE EXAMINATION OF WITNESSES (ss135-166)

135. Order of production and examination of witnesses— The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.

136. JUDGE TO DECIDE AS TO ADMISSIBILITY OF EVIDENCE— When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.
Illustrations
(a)It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32.
The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.
(b)It is proposed to prove, by a copy, the contents of a document said to be lost.
The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.
(c)A is accused of receiving stolen property knowing it to have been stolen.
It is proposed to prove that he denied the possession of the property.
The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.
(d)It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.

137. Examination-in-chief— The examination of a witness by the party who calls him shall be called his examination-in-chief.
Cross-examination.— The examination of a witness by the adverse party shall be called his cross-examination.
Re-examination.— The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

138. Order of examinations— Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination— The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

139. Cross-examination of person called to produce a document— A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examined unless and until he is called as a witness.

140. Witnesses to character— Witnesses to character may be cross-examined and re-examined.

141. LEADING QUESTIONS— Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.

142. When they must not be asked— Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.
The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.

143. When they may be asked— Leading questions may be asked in cross-examination.

144. Evidence as to matters in writing— Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation.— A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration
The question is, whether A assaulted B.
C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

145. CROSS-EXAMINATION AS TO PREVIOUS STATEMENTS IN WRITING — A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

146. Questions lawful in cross-examination — When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend—
(1) to test his veracity,
(2) to discover who he is and what is his position in life, or
(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture:
Provided that in a prosecution for an offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code (45 of 1860) or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.

147. When witness to be compelled to answer— If any such question relates to a matter relevant to the suit or proceeding, the provisions of section 132 shall apply thereto.

148. COURT TO DECIDE WHEN QUESTION SHALL BE ASKED AND WHEN WITNESS COMPELLED TO ANSWER— If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations:—
(1) 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;
(2) Such questions are improper if the imputation which 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, the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
(3) 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;
(4) The Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference that the answer if given would be unfavorable.

149. Question not to be asked without reasonable grounds— No such question as is referred to in section 148 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded.
Illustrations
(a)A barrister is instructed by an attorney or vakil that an important witness is a dakait. This is a reasonable ground for asking the witness whether he is a dakait.
(b)A pleader is informed by a person in Court that an important witness is a dakait. The informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a dakait.
(c)A witness, of whom nothing whatever is known, is asked at random whether he is a dakait. There are here no reasonable grounds for the question.
(d)A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living, gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a dakait.

150. Procedure of Court in case of question being asked without reasonable grounds— If the Court is of opinion that any such question was asked without reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or attorney, report the circumstances of the case to the High Court or other authority to which such barrister, pleader, vakil or attorney is the subject in the exercise of his profession.

151. Indecent and scandalous questions— The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.

152. Questions intended to insult or annoy— The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.

153. Exclusion of evidence to contradict answers to questions testing veracity— When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence.
Exception 1.— If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.
Exception 2.— If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.
Illustrations
(a)A claim against an underwriter is resisted on the ground of fraud.
The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it.
Evidence is offered to show that he did make such a claim.
The evidence is inadmissible.
(b)A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it.
Evidence is offered to show that he was dismissed for dishonesty.
The evidence is not admissible.
(c)A affirms that on a certain day he saw B at Lahore.
A is asked whether he himself was not on that day at Calcutta. He denies it.
Evidence is offered to show that A was on that day at Calcutta.
The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore.
In each of these cases the witness might, if his denial was false, be charged with giving false evidence.
(d)A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence.
He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.
154. Question by party to his own witness—
(1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.

155. IMPEACHING CREDIT OF WITNESS— The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him:—
(1) By the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
Explanation.— A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.
Illustrations
(a)A sues B for the price of goods sold and delivered to B.
C says that he delivered the goods to B.
Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to B.
The evidence is admissible.
(b)A is indicted for the murder of B.
C says the B, when dying, declared that A had given B the wound of which he died.
Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence.
The evidence is admissible.

156. QUESTIONS TENDING TO CORROBORATE EVIDENCE OF RELEVANT FACT, ADMISSIBLE— When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
Illustration
A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed.
Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.

157. Former statements of witness may be proved to corroborate later testimony as to same fact — In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

158. What matters may be proved in connection with proved statement relevant under section 32 or 33— Whenever any statement, relevant under section 32 or 33, is proved, all matters may be proved, either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination of the truth the matter suggested.

159. Refreshing memory — A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.
When witness may use copy of document to refresh memory.— Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:
Provided the Court be satisfied that there is sufficient reason for the non-production of the original.
An expert may refresh his memory by reference to professional treatises.

160. Testimony to facts stated in document mentioned in section 159— A witness may also testify to facts mentioned in any such document as is mentioned in section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.
Illustration
A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.

161. Right of adverse party as to writing used to refresh memory— Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.

162. Production of documents— A witness summoned to produce a document shall, if it is in his possession or power, bring it to the Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.
The Court, if it sees, fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.
Translation of documents— If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence : and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 166 of the Indian Penal Code (45 of 1860).

163. Giving, as evidence, of document called for and produced on notice— When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.
164. Using, as evidence, of document, production of which was refused on notice— When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.
Illustration
A sues B on an agreement and gives B notice to produce it. At the trial, A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.

165. Judge’s power to put questions or order production— The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

166. Power of jury or assessors to put questions— In cases tried by jury or with assessors, the jury or assessors may put any question to the witnesses, through or by leave of the Judge, which the Judge himself might put and which he considers proper.

Devider

CHAPTER XI
OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE

167. No new trial for improper admission or rejection of evidence— The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.

THE SCHEDULE
ENACTMENTS REPEALED-[ BY REPEALING ACT – 1938, Section 2 and Schedule]