Welcome to the Evidence Act 2008

This blog was started back when the Evidence Act 2008 was nothing more than a gleam in Parliament's eye. It was an attempt to further understanding of some challenging new legislation when information about it was difficult to find.

Since then, many authors and luminaries have turned their minds to the complex issues the Act obliges Victorian lawyers to engage with. A blog devoted exclusively to this one piece of legislation isn't necessary, and is impossible for us to give the attention it deserves.

If you're looking for a more conventional blog posting on topical legal issues, have a look at Quis Custodiet Ipsos Custodes? by the same authors.

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194. Witnesses failing to attend proceedings

194. Witnesses failing to attend proceedings

(1) If, in a civil or criminal proceeding, a witness fails to appear when called and it is proved that the witness has been-

(a) bound over to appear; or

(b) duly bound by recognisance or undertaking to appear; or

(c) served with a summons or subpoena to attend and a reasonable sum of money has been provided to the witness for his or her costs in so attending-

the court may-

(d) issue a warrant to apprehend the witness and bring him or her before the court; or

(e) order the witness to pay a fine of not more than 5 penalty units; or

(f) take any other action against the witness that is permitted by law.

(2) If a subpoena or summons has been issued for the attendance of a witness on the hearing of a civil or criminal proceeding and it is proved, on application by the party seeking to compel his or her attendance, that the witness-

(a) is avoiding service of the subpoena or summons; or

(b) has been duly served with the subpoena or summons but is unlikely to
comply with it-

the court may issue a warrant to apprehend the witness and bring the witness before the court.

(3) In issuing a warrant under this section, the court may endorse the warrant with a direction that the person must, on arrest, be released on bail as specified in the endorsement.

(4) An endorsement under subsection (3) must fix the amounts in which the principal and the sureties (if any) are bound and the amount of any money or the value of any security to be deposited.

(5) The person to whom the warrant to arrest is directed must cause the person named or described in the warrant when arrested-

(a) to be released on bail in accordance with any endorsement on the warrant; or

(b) if there is no endorsement on the warrant, to be brought before the court which issued the warrant; or

(c) to be discharged from custody on bail in accordance with the Bail Act 1977.

(6) Matters may be proved under this section orally or by affidavit.

(7) A witness, who under subsection (1)(e) has been ordered to pay a fine, is not exempted from any other proceedings for disobeying the subpoena or summons.


This section differs from the New South Wales Act. The Commonwealth Act does not include an equivalent provision to section 194. There are provisions to the same effect in federal court rules and Australian Capital Territory legislation applying to proceedings before federal courts and Australian Capital Territory courts.


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