Part 2.1Division 1 Competence and compellability of witnesses
12 Competence and compellability
Except as otherwise provided by this Act:(a) every person is competent to give evidence, and(b) a person who is competent to give evidence about a fact is compellable to give that evidence.
13 Competence: lack of capacity
(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability):(a) the person does not have the capacity to understand a question about the fact, or(b) the person does not have the capacity to give an answer that can be understood to a question about the fact,and that incapacity cannot be overcome.Note. See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.(2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.(3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.(4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.(5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:(a) that it is important to tell the truth, and(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.(6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.(7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.(8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience.
14 Compellability: reduced capacity
A person is not compellable to give evidence on a particular matter if the court is satisfied that:(a) substantial cost or delay would be incurred in ensuring that the person would have the capacity to understand a question about the matter or to give an answer that can be understood to a question about the matter, and(b) adequate evidence on that matter has been given, or will be able to be given, from one or more other persons or sources.
15 Compellability: Sovereign and others
(1) None of the following is compellable to give evidence:(a) the Sovereign,(b) the Governor-General,(c) the Governor of a State,(d) the Administrator of a Territory,(e) a foreign sovereign or the Head of State of a foreign country.(2) A member of a House of an Australian Parliament is not compellable to give evidence if the member would, if compelled to give evidence, be prevented from attending:(a) a sitting of that House, or a joint sitting of that Parliament, or(b) a meeting of a committee of that House or that Parliament, being a committee of which he or she is a member.
16 Competence and compellability: judges and jurors
(1) A person who is a judge or juror in a proceeding is not competent to give evidence in that proceeding. However, a juror is competent to give evidence in the proceeding about matters affecting conduct of the proceeding.(2) A person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave.
17 Competence and compellability: defendants in criminal proceedings
(1) This section applies only in a criminal proceeding.(2) A defendant is not competent to give evidence as a witness for the prosecution.(3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant.(4) If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury’s absence) that the witness is aware of the effect of subsection (3).Note. Associated defendant is defined in the Dictionary.
18 Compellability of spouses and others in criminal proceedings generally
(1) This section applies only in a criminal proceeding.(2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required:(a) to give evidence, or(b) to give evidence of a communication between the person and the defendant,as a witness for the prosecution.(3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.(4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.(5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and(b) the nature and extent of that harm outweighs the desirability of having the evidence given.(7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following:(a) the nature and gravity of the offence for which the defendant is being prosecuted,(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it,(c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor,(d) the nature of the relationship between the defendant and the person,(e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.(8) If an objection under this section has been determined, the prosecutor may not comment on:(a) the objection, or(b) the decision of the court in relation to the objection, or(c) the failure of the person to give evidence.
19 Compellability of spouses and others in certain criminal proceedings
Section 18 does not apply in proceedings for an offence against or referred to in the following provisions:section 222 (Endangering children in employment), 223 (Certain employers of children to be authorised), 227 (Child and young person abuse) or 228 (Neglect of children and young persons) of the Children and Young Persons (Care and Protection) Act 1998
section 279 (Compellability of spouses to give evidence in certain proceedings) of the Criminal Procedure Act 1986.
Note. This section differs from section 19 of the Commonwealth Act.
20 Comment on failure to give evidence
(1) This section applies only in a criminal proceeding for an indictable offence.(2) The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.(3) The judge or any party (other than the prosecutor) may comment on a failure to give evidence by a person who, at the time of the failure, was:(a) the defendant’s spouse or de facto partner, or(b) a parent or child of the defendant.(4) However, unless the comment is made by another defendant in the proceeding, a comment of a kind referred to in subsection (3) must not suggest that the spouse, de facto partner, parent or child failed to give evidence because:(a) the defendant was guilty of the offence concerned, or(b) the spouse, de facto partner, parent or child believed that the defendant was guilty of the offence concerned.(5) If:(a) 2 or more persons are being tried together for an indictable offence, and(b) comment is made by any of those persons on the failure of any of those persons or of the spouse or de facto partner, or a parent or child, of any of those persons to give evidence,the judge may, in addition to commenting on the failure to give evidence, comment on any comment of a kind referred to in paragraph (b).
Division 2 Oaths and affirmations
21 Sworn evidence to be on oath or affirmation
(1) A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence.(2) Subsection (1) does not apply to a person who gives unsworn evidence under section 13.(3) A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so.(4) The witness is to take the oath, or make the affirmation, in accordance with the appropriate form in Schedule 1 or in a similar form.(5) Such an affirmation has the same effect for all purposes as an oath.
22 Interpreters to act on oath or affirmation
(1) A person must either take an oath, or make an affirmation, before acting as an interpreter in a proceeding.(1A) An oath taken, or an affirmation made, by a person before acting as an interpreter on a day is taken for the purposes of subsection (1) to be an oath taken or affirmation made by that person for the purposes of any subsequent proceedings in that court on that day in which the person acts as an interpreter.(2) The person is to take the oath, or make the affirmation, in accordance with the appropriate form in Schedule 1 or in a similar form.(3) Such an affirmation has the same effect for all purposes as an oath.Note. The Commonwealth Act does not include subsection (1A).
23 Choice of oath or affirmation
(1) A person who is to be a witness or act as an interpreter in a proceeding may choose whether to take an oath or make an affirmation.(2) The court is to inform the person that he or she has this choice, unless the court is satisfied that the person has already been informed or knows that he or she has the choice.(3) The court may direct a person who is to be a witness to make an affirmation if:(a) the person refuses to choose whether to take an oath or make an affirmation, or(b) it is not reasonably practicable for the person to take an appropriate oath.Note. Subsection (2) differs from section 23 of the Commonwealth Act.
(1) It is not necessary that a religious text be used in taking an oath.(2) An oath is effective for the purposes of this Division even if the person who took it:(a) did not have a religious belief or did not have a religious belief of a particular kind, or(b) did not understand the nature and consequences of the oath.
(1) A person may take an oath even if the person’s religious or spiritual beliefs do not include a belief in the existence of a god.(2) Despite anything to the contrary in this Act, the form of oath taken by a person:(a) need not include a reference to a god, and(b) may instead refer to the basis of the person’s beliefs in accordance with a form prescribed by the regulations.Note. The Commonwealth Act does not include an equivalent provision to section 24A.
25 Rights to make unsworn statements unaffected
* * * * *Note. The Commonwealth Act includes a provision preserving any right of a defendant under the law of a State or Territory to make an unsworn statement. The right to make an unsworn statement remains in Norfolk Island.
Division 3 General rules about giving evidence
26 Court’s control over questioning of witnesses
The court may make such orders as it considers just in relation to:(a) the way in which witnesses are to be questioned, and(b) the production and use of documents and things in connection with the questioning of witnesses, and(c) the order in which parties may question a witness, and(d) the presence and behaviour of any person in connection with the questioning of witnesses.
27 Parties may question witnesses
A party may question any witness, except as provided by this Act.
28 Order of examination in chief, cross-examination and re-examination
Unless the court otherwise directs:(a) cross-examination of a witness is not to take place before the examination in chief of the witness, and(b) re-examination of a witness is not to take place before all other parties who wish to do so have cross-examined the witness.
29 Manner and form of questioning witnesses and their responses
(1) A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court.(2) A court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form.(3) Such a direction may include directions about the way in which evidence is to be given in that form.(4) Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.
A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.
(1) A witness who cannot hear adequately may be questioned in any appropriate way.(2) A witness who cannot speak adequately may give evidence by any appropriate means.(3) The court may give directions concerning either or both of the following:(a) the way in which a witness may be questioned under subsection (1),(b) the means by which a witness may give evidence under subsection (2).(4) This section does not affect the right of a witness to whom this section applies to give evidence about a fact through an interpreter under section 30.
32 Attempts to revive memory in court
(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account:(a) whether the witness will be able to recall the fact or opinion adequately without using the document, and(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that:(i) was written or made by the witness when the events recorded in it were fresh in his or her memory, or(ii) was, at such a time, found by the witness to be accurate.(3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.
33 Evidence given by police officers
(1) Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer.(2) Evidence may not be so given unless:(a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers, and(b) the police officer signed the statement when it was made, and(c) a copy of the statement had been given to the person charged or to his or her Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution.(3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer.
34 Attempts to revive memory out of court
(1) The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.(2) The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with.
35 Effect of calling for production of documents
(1) A party is not to be required to tender a document only because the party, whether under this Act or otherwise:(a) called for the document to be produced to the party, or(b) inspected it when it was so produced.(2) The party who produces a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it.
36 Person may be examined without subpoena or other process
(1) The court may order a person who:(a) is present at the hearing of a proceeding, and(b) is compellable to give evidence in the proceeding,to give evidence and to produce documents or things even if a subpoena or other process requiring the person to attend for that purpose has not been duly served on the person.(2) A person so ordered to give evidence or to produce documents or things is subject to the same penalties and liabilities as if the person had been duly served with such a subpoena or other process.(3) A party who inspects a document or thing produced to the court because of subsection (1) need not use the document in evidence.
Division 4 Examination in chief and re-examination
(1) A leading question must not be put to a witness in examination in chief or in re-examination unless:(a) the court gives leave, or(b) the question relates to a matter introductory to the witness’s evidence, or(c) no objection is made to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the proceeding is represented by an Australian legal practitioner, legal counsel or prosecutor, or(d) the question relates to a matter that is not in dispute, or(e) if the witness has specialised knowledge based on the witness’s training, study or experience—the question is asked for the purpose of obtaining the witness’s opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given.(2) Unless the court otherwise directs, subsection (1) does not apply in civil proceedings to a question that relates to an investigation, inspection or report that the witness made in the course of carrying out public or official duties.(3) Subsection (1) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker.Note. Leading question is defined in the Dictionary.
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:(a) evidence given by the witness that is unfavourable to the party, or(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or(c) whether the witness has, at any time, made a prior inconsistent statement.(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.Note. The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.(7) A party is subject to the same liability to be cross-examined under this section as any other witness if:(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and(b) the party is a witness in the proceeding.
On re-examination:(a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination, and(b) other questions may not be put to the witness unless the court gives leave.
A party is not to cross-examine a witness who has been called in error by another party and has not been questioned by that other party about a matter relevant to a question to be determined in the proceeding.
(1) The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a disallowable question):(a) is misleading or confusing, or(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or(d) has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).(2) Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account:(a) any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality, and(b) any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject, and(c) the context in which the question is put, including:(i) the nature of the proceeding, and(ii) in a criminal proceeding—the nature of the offence to which the proceeding relates, and(iii) the relationship (if any) between the witness and any other party to the proceeding.(3) A question is not a disallowable question merely because:(a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness, or(b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.(4) A party may object to a question put to a witness on the ground that it is a disallowable question.(5) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.(6) A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.Note. A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section—see section 195.
(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which:(a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness, and(b) the witness has an interest consistent with an interest of the cross-examiner, and(c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter, and(d) the witness’s age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness’s answers.(3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.(4) This section does not limit the court’s power to control leading questions.Note. Leading question is defined in the Dictionary.
43 Prior inconsistent statements of witnesses
(1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not:(a) complete particulars of the statement have been given to the witness, or(b) a document containing a record of the statement has been shown to the witness.(2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner:(a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and(b) drew the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence.(3) For the purpose of adducing evidence of the statement, a party may re-open the party’s case.
44 Previous representations of other persons
(1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.(2) A cross-examiner may question a witness about the representation and its contents if:(a) evidence of the representation has been admitted, or(b) the court is satisfied that it will be admitted.(3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows:(a) the document must be produced to the witness,(b) if the document is a tape recording, or any other kind of document from which sounds are reproduced—the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents,(c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given,(d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.(4) A document that is so used may be marked for identification.
(1) This section applies if a party is cross-examining or has cross-examined a witness about:(a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document, or(b) a previous representation alleged to have been made by another person that is recorded in a document.(2) If the court so orders or if another party so requires, the party must produce:(a) the document, or(b) such evidence of the contents of the document as is available to the party,to the court or to that other party.(3) The court may:(a) examine a document or evidence that has been so produced, and(b) give directions as to its use, and(c) admit it even if it has not been tendered by a party.(4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3.(5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.
(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and:(a) it contradicts evidence about the matter given by the witness in examination in chief, or(b) the witness could have given evidence about the matter in examination in chief.(2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.