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.

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190 Waiver of rules of evidence

190. Waiver of rules of evidence

(1) The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of-

(a) Division 3, 4 or 5 of Part 2.1; or

(b) Part 2.2 or 2.3; or

(c) Parts 3.2-3.8-

in relation to particular evidence or generally.

(2) In a criminal proceeding, a defendant's consent is not effective for the purposes of subsection (1) unless-

(a) the defendant has been advised to do so by the defendant's Australian legal practitioner or legal counsel; or


Paragraph (a) differs from the Commonwealth Act and New South Wales Act.

(b) the court is satisfied that the defendant understands the consequences of giving the consent.

(3) In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if-

(a) the matter to which the evidence relates is not genuinely in dispute; or

(b) the application of those provisions would cause or involve unnecessary expense or delay.

(4) Without limiting the matters that the court may take into account in deciding whether to exercise the power conferred by subsection (3), it is to take into account-

(a) the importance of the evidence in the proceeding; and

(b) the nature of the cause of action or defence and the nature of the subject-matter of the proceeding; and

(c) the probative value of the evidence; and

(d) the powers of the court (if any) to adjourn the hearing, to make
another order or to give a direction in relation to the evidence.

In Kirk v Industrial Relations Commission (NSW) [2010] HCA 1, the High Court granted certiorari for a purported waiver of s 17(2) (the defendant in a WorkCover prosecution was called as a witness by the prosecutor) which was held to be invalid, Division 1 of Part 2.1 not being included in sub-section (2) above.


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