173. Notification of other parties

173. Notification of other parties

(1) A copy of the affidavit or statement must be served on each party a reasonable time before the hearing of the proceeding.

(2) The party who tenders the affidavit or statement must, if another party so requests, call the deponent or person who made the statement to give evidence but need not otherwise do so.

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172. Evidence based on knowledge, belief or information

172. Evidence based on knowledge, belief or information

(1) Despite Chapter 3, the evidence may include evidence based on the knowledge and belief of the person who gives it, or on information that that person has.

(2) An affidavit or statement that includes evidence based on knowledge, information or belief must set out the source of the knowledge or information or the basis of the belief.

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171. Persons who may give such evidence

171. Persons who may give such evidence

(1) Such evidence may be given by-

(a) a person who, at the relevant time or afterwards, had a position of responsibility in relation to making or keeping the document or thing; or

(b) except in the case of evidence of a fact that is to be proved in relation to a document or thing because of section 63, 64 or 65 - an authorised person.

(2) Despite subsection (1)(b), evidence must not be given under this section by an authorised person who, at the relevant time or afterwards, did not have a position of responsibility in relation to making or keeping the document or thing unless it appears to the court that-

(a) it is not reasonably practicable for the evidence to be given by a person who had, at the relevant time or afterwards, a position of responsibility in relation to making or keeping the document or thing; or

(b) having regard to all the circumstances of the case, undue expense would be caused by calling such a person as a witness.

(3) In this section, authorised person means-

(a) a person before whom an affidavit may be sworn and taken in a country or place outside the State under section 124 of the Evidence Act 1958; or

(b) a member of the police force above the rank of sergeant; or

(c) a person authorised by the Attorney-General for the purposes of this section.

Note

The Commonwealth Act and New South Wales Act contain a different definition of authorised person.

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159. Official statistics

159. Official statistics

A document that purports-

(a) to be published by the Australian Statistician; and

(b) to contain statistics or abstracts compiled and analysed by the Australian Statistician under the Census and Statistics Act 1905 of the Commonwealth-

is evidence that those statistics or abstracts were compiled and analysed by the Australian Statistician under that Act. Note Section 5 of the Commonwealth Act extends the operation of section 159 of the Commonwealth Act to proceedings in all Australian courts.

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158. Evidence of certain public documents

158. Evidence of certain public documents

(1) If-

(a) a public document, or a certified copy of a public document, of another State or a Territory is admissible for a purpose in that State or Territory under the law of that State or Territory; and

(b) it purports to be sealed, or signed and sealed, or signed alone, as directed by the law of that State or Territory-

it is admissible in evidence to the same extent and for that purpose in all Victorian courts-

(c) without proof of-

(i) the seal or signature; or

(ii) the official character of the person appearing to have signed it; and

(d) without further proof in every case in which the original document could have been received in evidence.

(2) A public document of another State or a Territory that is admissible in evidence for any purpose in that State or Territory under the law of that State or Territory without proof of-

(a) the seal or signature authenticating the document; or

(b) the judicial or official character of the person appearing to have signed the document-

is admissible in evidence to the same extent and for any purpose in all Victorian courts without such proof.

(3) This section only applies to documents that are public records of another State or a Territory.

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157. Public documents relating to court processes

157. Public documents relating to court processes

Evidence of a public document that is a judgment, act or other process of an Australian court or a foreign court, or that is a document lodged with an Australian court or a foreign court, may be adduced by producing a document that purports to be a copy of the public document and that-

(a) is proved to be an examined copy; or

(b) purports to be sealed with the seal of that court; or

(c) purports to be signed by a judge, magistrate, registrar or other roper officer of that court.

Note

Section 5 of the Commonwealth Act extends the operation of section 157 of the Commonwealth Act to proceedings in all Australian courts.

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156. Public documents

156. Public documents

(1) A document that purports to be a copy of, or an extract from or summary
of, a public document and to have been-

(a) sealed with the seal of a person who, or a body that, might reasonably be supposed to have the custody of the public document; or

(b) certified as such a copy, extract or summary by a person who might reasonably be supposed to have custody of the public document-

is presumed, unless the contrary is proved, to be a copy of the public document, or an extract from or summary of the public document.

(2) If an officer entrusted with the custody of a public document is required by a court to produce the public document, it is sufficient compliance with the requirement for the officer to produce a copy of, or extract from, the public document if it purports to be signed and certified by the officer as a true copy or extract.

(3) It is sufficient production of a copy or extract for the purposes of subsection (2) if the officer sends it by prepaid post, or causes it to be delivered, to-

(a) the proper officer of the court in which it is to be produced; or

(b) the person before whom it is to be produced.

(4) The court before which a copy or extract is produced under subsection (2) may direct the officer to produce the original public document.

Note

Section 182 of the Commonwealth Act gives section 156 of the Commonwealth Act a wider application in relation to Commonwealth records.

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155A. Evidence of Commonwealth documents

155A. Evidence of Commonwealth documents


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Note

The Commonwealth Act includes a provision that relates to evidence of Commonwealth documents.

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155. Evidence of official records

155. Evidence of official records

(1) Evidence of a Commonwealth record or of a public document of this State, another State or a Territory may be adduced by producing a document that-

(a) purports to be such a record or document and to be signed or sealed by-

(i) a Minister of the Commonwealth, or a Minister of this or another State or a Territory, as the case requires; or

(ii) a person who might reasonably be supposed to have custody of the record or document; or

(b) purports to be a copy of or extract from the record or document that is certified to be a true copy or extract by-

(i) a Minister of the Commonwealth, or a Minister of this or another State or a Territory, as the case requires; or

(ii) a person who might reasonably be supposed to have custody of the record or document.

(2) If such a document is produced, it is presumed, unless evidence that is sufficient to raise doubt about the presumption is adduced, that-

(a) the document is the record, public document, copy or extract that it purports to be; and

(b) the Minister of the Commonwealth, Minister of this or that other State or the Territory or person-

(i) signed or sealed the record; or

(ii) certified the copy or extract as a true copy or extract- as the case requires.

Note

This section differs from section 155 of the Commonwealth Act. The Commonwealth provision refers to evidence of a "public record" of a State or Territory rather than evidence of a "public document" of a State or Territory.

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154. Documents published by authority of Parliaments etc.

154. Documents published by authority of Parliaments etc.

It is presumed, unless the contrary is proved, that a document purporting to
have been printed by authority of an Australian Parliament, a House of an
Australian Parliament, a committee of such a House or a committee of an
Australian Parliament-

(a) is what it purports to be; and

(b) was published on the day on which it purports to have been published.

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153. Gazettes and other official documents

153. Gazettes and other official documents

(1) It is presumed, unless the contrary is proved, that a document purporting-

(a) to be any government or official gazette (by whatever name called) of this State, the Commonwealth, another State, a Territory or a foreign country; or

(b) to have been printed by the Government Printer of this State, or by the government or official printer of the Commonwealth or of a State or Territory; or

(c) to have been printed by authority of the government or administration
of this State, the Commonwealth, another State, a Territory or a
foreign country-

is what it purports to be and was published on the day on which it purports to have been published.

(2) If-

(a) there is produced to a court-

(i) a copy of any government or official gazette (by whatever name called) of this State, the Commonwealth, another State, a Territory or a foreign country; or

(ii) a document that purports to have been printed by the Government Printer of this State, or by the government or official printer of the Commonwealth or of a State or Territory; or

(iii) a document that purports to have been printed by authority of the government or administration of this State, the Commonwealth, another State, a Territory or a foreign country; and

(b) the doing of an act-

(i) by the Governor-General or by the Governor of a State or the Administrator of a Territory; or

(ii) by a person authorised or empowered to do the act by an Australian law or a law of a foreign country- is notified or published in the copy or document- it is presumed, unless the contrary is proved, that the act was duly done and, if the day on which the act was done appears in the copy or document, it was done on that day. Note Section 5 of the Commonwealth Act extends the operation of section 153 of the Commonwealth Act to proceedings in all Australian courts.

In the summary jurisdiction, this provision will remove the prosecution's obligation to tender Regulations, as commonly occurs in the hearing of traffic charges.

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128A. Privilege in respect of self-incrimination-exception for certain orders etc.

128A. Privilege in respect of self-incrimination-exception for certain orders etc.

(1) In this section-

disclosure order means an order made by a Victorian court in a civil proceeding requiring a person to disclose information, as part of, or in connection with a freezing or search order under the Rules of the Supreme Court but does not include an order made by a court under the Proceeds of Crime Act 2002 of the Commonwealth or the Confiscation Act 1997;

Note

This definition differs from the New South Wales Act.

relevant person means a person to whom a disclosure order is directed.

(2) If a relevant person objects to complying with a disclosure order on the grounds that some or all of the information required to be disclosed may tend to prove that the person-

(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or

(b) is liable to a civil penalty-

the person must-

(c) disclose so much of the information required to be disclosed to which no objection is taken; and

(d) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken (the privilege affidavit) and deliver it to the court in a sealed envelope; and

(e) file and serve on each other party a separate affidavit setting out the basis of the objection.

(3) The sealed envelope containing the privilege affidavit must not be opened except as directed by the court.

(4) The court must determine whether or not there are reasonable grounds for the objection.

(5) Subject to subsection (6), if the court finds that there are reasonable grounds for the objection, the court must not require the information contained in the privilege affidavit to be disclosed and must return it to the relevant person.

(6) If the court is satisfied that-

(a) any information disclosed in the privilege affidavit may tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law; and

(b) the information does not tend to prove that the relevant person has
committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

(c) the interests of justice require the information to be disclosed-

the court may make an order requiring the whole or any part of the privilege affidavit containing information of the kind referred to in paragraph (a) to be filed and served on the parties.

(7) If the whole or any part of the privilege affidavit is disclosed (including by order under subsection (6)), the court must cause the relevant person to be given a certificate in respect of the information referred to in subsection (6)(a).

(8) In any proceeding in a Victorian court-

(a) evidence of information disclosed by a relevant person in respect of which a certificate has been given under this section; and

(b) evidence of any information, document or thing obtained as a direct result or indirect consequence of the relevant person having disclosed that information-

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence concerned.

(9) Subsection (8) does not prevent the use against the relevant person of any information disclosed by a document-

(a) that is an annexure or exhibit to a privilege affidavit prepared by the person in response to a disclosure order; and

(b) that was in existence before the order was made.

(10) Subsection (8) has effect despite any challenge, review, quashing or
calling into question on any ground of the decision to give, or the validity of, the certificate concerned.

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128. Privilege in respect of self-incrimination in other proceedings

128. Privilege in respect of self-incrimination in other proceedings

(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness-

(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or

(b) is liable to a civil penalty.

(2) The court must determine whether or not there are reasonable grounds for the objection.

(3) If the court determines that there are reasonable grounds for the objection, the court is to inform the witness-

(a) that the witness need not give the evidence unless required by the court to do so under subsection (4); and

(b) that the court will give a certificate under this section if-

(i) the witness willingly gives the evidence without being required to do so under subsection (4); or

(ii) the witness gives the evidence after being required to do so under
subsection (4); and

(c) of the effect of such a certificate.

(4) The court may require the witness to give the evidence if the court is satisfied that-

(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

(b) the interests of justice require that the witness give the evidence.

(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.

(6) The court is also to cause a witness to be given a certificate under this section if-

(a) the objection has been overruled; and

(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.

(7) In any proceeding in a Victorian court or before any person or body
authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence-

(a) evidence given by a person in respect of which a certificate under this section has been given; and

(b) any information, document or thing obtained as a direct or indirect consequence of the person having given evidence-

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

Note

This subsection differs from section 128(7) of the Commonwealth Act. The
Commonwealth provision refers to an "Australian Court" instead of a "Victorian court".

(8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.

(9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence.

(10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant-

(a) did an act the doing of which is a fact in issue; or

(b) had a state of mind the existence of which is a fact in issue.

(11) A reference in this section to doing an act includes a reference to failing to act.

Notes

1. Bodies corporate cannot claim this privilege. See section 187.

2. Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty.

3. The Commonwealth Act includes additional subsections. The subsections give effect to certificates in relation to self-incriminating evidence under the Victorian Act in proceedings in federal and Australian Capital Territory courts and in prosecutions for Commonwealth and Australian Capital Territory offences.

4. Subsections (8) and (9) were inserted as a response to the decision of the High Court of Australia in Cornwell v. The Queen [2007] HCA 12 (22 March 2007).

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127. Religious confessions

127. Religious confessions

(1) A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy.

(2) Subsection (1) does not apply if the communication involved in the religious confession was made for a criminal purpose.

(3) This section applies even if an Act provides-

(a) that the rules of evidence do not apply or that a person or body is not bound by the rules of evidence; or

(b) that a person is not excused from answering any question or producing any document or other thing on the ground of privilege or any other ground.

(4) In this section, religious confession means a confession made by a person to a member of the clergy in the member's professional capacity according to the ritual of the church or religious denomination concerned.

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108. Exception - re-establishing credibility

108. Exception - re-establishing credibility

(1) The credibility rule does not apply to evidence adduced in re- xamination of a witness.

(2) * * * * *

Note

The Commonwealth Act includes a subsection referring to section 105 of that Act.

(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if-

(a) evidence of a prior inconsistent statement of the witness has been admitted; or

(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion-

and the court gives leave to adduce the evidence of the prior consistent statement.

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106. Exception - rebutting denials by other evidence

106. Exception-rebutting denials by other evidence

(1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if-

(a) in cross-examination of the witness-

(i) the substance of the evidence was put to the witness; and

(ii) the witness denied, or did not admit or agree to, the substance of the evidence; and

(b) the court gives leave to adduce the evidence.

(2) Leave under subsection (1)(b) is not required if the evidence tends to prove that the witness-

(a) is biased or has a motive for being untruthful; or

(b) has been convicted of an offence, including an offence against the law of a foreign country; or

(c) has made a prior inconsistent statement; or

(d) is, or was, unable to be aware of matters to which his or her evidence relates; or

(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.

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107. Exception - application of certain provisions to makers of representations, section 107

107. Exception - application of certain provisions to makers of representations


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Note

This section has been repealed from the Commonwealth Act and New South Wales Act.

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104 Further protections-cross-examination as to credibility

104. Further protections-cross-examination as to credibility

(1) This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103.

(2) A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant's credibility, unless the court gives leave.

(3) Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant-

(a) is biased or has a motive to be untruthful; or

<(b) is, or was, unable to be aware of or recall matters to which his or her evidence relates; or (c) has made a prior inconsistent statement.

(4) Leave must not be given for cross-examination by the prosecutor under subsection (2) unless evidence adduced by the defendant has been admitted that-

(a) tends to prove that a witness called by the prosecutor has a tendency to be untruthful; and

(b) is relevant solely or mainly to the witness's credibility.

(5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to-

(a) the events in relation to which the defendant is being prosecuted; or

(b) the investigation of the offence for which the defendant is being prosecuted.

(6) Leave is not to be given for cross-examination by another defendant unless-

(a) the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to cross-examine; and

(b) that evidence has been admitted.

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103. Exception - cross-examination as to credibility

103. Exception - cross-examination as to credibility

(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.

(2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to-

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

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102. The credibility rule

102. The credibility rule

Credibility evidence about a witness is not admissible.

Notes

1. Specific exceptions to the credibility rule are as follows-

· evidence adduced in cross-examination (sections 103 and 104)
· evidence in rebuttal of denials (section 106)
· evidence to re-establish credibility (section 108)
· evidence of persons with specialised knowledge (section 108C)
· character of accused persons (section 110) Other provisions of this Act, or of other laws, may operate as further exceptions.

2. Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but is not a witness.

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