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.


4. Courts and proceedings to which Act applies

4. Courts and proceedings to which Act applies

(1) This Act applies to all proceedings in a Victorian court, including proceedings that-

(a) relate to bail; or

(b) are interlocutory proceedings or proceedings of a similar kind; or

(c) are heard in chambers; or

(d) subject to subsection (2), relate to sentencing.

(2) If such a proceeding relates to sentencing-

(a) this Act applies only if the court directs that the law of evidence applies in the proceeding; and

(b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters-the direction has effect accordingly.

(3) The court must make a direction if-

(a) a party to the proceeding applies for such a direction in relation to the proof of a fact; and

(b) in the court's opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding.

(4) The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.

(5) In this section, a proceeding that relates to sentencing includes a proceeding for an order under Part 4 of the Sentencing Act 1991.


1. Section 4 of the Commonwealth Act differs from this section. It applies that Act to proceedings in a federal court or an Australian Capital Territory court. Some provisions of the Commonwealth Act extend beyond proceedings in federal courts and Australian Capital Territory courts (see sections 5, 185, 186 and 187 of the Commonwealth Act).

2. Victorian court is defined in the Dictionary. The definition includes persons or bodies required to apply the laws of evidence.

3. The Commonwealth Act includes 2 additional subsections that exclude the application of that Act to appeals from a court of a State (including appeals from a court of a State exercising federal jurisdiction) and certain other courts. 4. Provisions in other Victorian Acts which relieve courts from the obligation to apply the rules of evidence in certain proceedings are preserved by section 8 of this Act. These include-

• section 44 of the Accident Compensation Act 1985;
• section 215 of the Children, Youth and Families Act 2005;
• sections 8(6) and 13A of the Crimes (Family Violence) Act 1987;
• section 38 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;
• section 127 of the Electoral Act 2002.

5. Subsection (5) is not included in the Commonwealth Act or New South Wales Act


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