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.

This site is no substitute for legal advice from an Australian lawyer. If you have a legal problem, it's great that you are doing a bit of research, but go consult a professional.


16. Competence and compellability - judges and jurors

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 the 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.

In relation to (2), see also s 129 of this Act. The reasons for judicial decisions must not be given in evidence in court proceedings.

Evans J of the Tasmanian Supreme Court said in R v Higgins [2009] TASSC 26 about s 16 of their Evidence Act 2001 (Tas), the equivalent of this section [at 9],

The Evidence Act, s16(3) , is a statutory reflection of that which has long been the law, which is, that judges may not be compelled to testify as to matters in which they have been judicially engaged. See Hennessey v Broken Hill Pty Co Ltd (1926) 38 CLR 343, Knox CJ, Gavan Duffy and Starke JJ at 349. As explained in Duke of Buccleuch v Metropolitan Board of Works (1872) 5 LR HL 418 by Baron Cleasby at 433:

With respect to those who fill the office of Judge it has been felt that there are grave objections to their conduct being made the subject of cross-examination and comment (to which hardly any limit could be put) in relation to proceedings before them; and, as everything which they can properly prove can be proved by others, the Courts of law discountenance, and I think I may say prevent them being examined.

See also Zanatta v McCleary (1976) 1 NSWLR 230 where Street CJ said, at 234:

The correctness or regularity of proceedings before [the judge] is not examinable in the light of subjective evidence from the judge who heard the case. There are in my view strong considerations of public policy in denying to any party the freedom to elicit from a judge evidence of this character. Nor is it without significance that no such case can be found where such evidence has been tendered and admitted.


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