Evidence Act 1906

Western Australia

Evidence Act 1906

Western Australia

Evidence Act 1906

CONTENTS

1. Short title 1

3. Terms used in this Act 1

4. Application of Act 4

5. This Act not to derogate from existing powers 4

6. Witnesses interested or convicted of offence 4

7. Parties to civil proceedings and spouses and ex‑spouses of parties 4

8. Accused persons in criminal cases 5

9. Spouses and ex‑spouses of accused persons in criminal cases 6

11. Court may compel answer to incriminating question 8

11A. Judge may restrict publication of evidence where s. 11 certificate given 9

12. Witnesses in revenue cases may be compelled to give evidence 9

13. Certificate under s. 12 may be pleaded in bar to prosecution10

14. Customs prosecutions, accused compellable 11

15. Persons may be examined without a subpoena 11

16. Witnesses failing to attend trial 11

17. Procedure on non‑appearance of a witness 12

18. Communications during marriage 12

19. Evidence of non‑access 13

19A. Terms used in these provisions 13

19B. Protected communications recorded electronically 16

19C. Protected communications not to be disclosed in criminal proceedings except with leave of court16

19D. Procedure on hearing of application for leave 18

19E. Application for leave to be dismissed if there is no legitimate forensic purpose for it 18

19F. Determination of application 19

19G. Public interest test 20

19H. Effect of consent 21

19I. Loss of sexual assault communications privilege: misconduct21

19J. Ancillary orders 22

19K. Inadmissibility of evidence that must not be adduced or given22

19L. Application of other laws 23

19M. Regulations as to disclosure of protected communications 23

20. How far a party may discredit his own witness 24

21. Cross‑examination as to and proof of prior inconsistent statement 24

22. Procedure for purposes of s. 21 25

23. Cross‑examination as to and proof of previous conviction 25

24. Questions tending to criminate 26

25. Cross‑examination as to credit 26

25A. Cross‑examination by accused in person 27

26. Improper questions 28

27. Prohibited questions not to be published 29

27A. Form of evidence 29

27B. Manner of giving voluminous or complex evidence 30

29. Intention to defraud, proof of 31

30. Proof by attesting witness unnecessary in certain cases 31

31. Comparison of disputed hand‑writing 31

31A. Propensity and relationship evidence 31

32. Admissions by accused persons in criminal cases 32

32A. Derogation of privilege in civil proceedings 32

35. Perjury charge, corroboration not required 33

36. Perjury charge, proof of trial etc. 34

36A. Terms used in s. 36A to 36C 34

36B. Sexual reputation of complainant, evidence of 35

36BA. Sexual disposition of complainant, evidence of 35

36BC. Sexual experience of complainant, evidence of 36

36BD. Lack of complaint, jury warning about 36

36BE. Expert evidence of child behaviour 37

36C. Names of complainants not to be published 37

40. Customs prosecutions, effect of averments in 40

41. Customs prosecutions, proof of appointment of officers 40

41A. Stealing and receiving charges, evidence of ownership of property stolen from ships, wharves, etc.40

42. Evidence on trial for defamation 42

44. Stealing charges, proof of receipt of money by accused, proof of general deficiency 42

45. Seals and stamps for the revenue or post office, proof of 43

46. Receiving charges, proof of knowledge that goods were stolen 43

46A. Sunrise and sunset, proof of 43

47. Conviction, acquittal and identity, proof of 44

49. Actions for seduction 45

50. Corroboration warnings not generally required 46

50A. Transcripts, proof of 46

50B. DNA evidentiary certificate 47

51. Prisoner required to give evidence may be brought up on order 49

52. Expense of bringing up prisoner 50

53. Commonwealth and States etc., and their Acts to be judicially noticed 50

54. Seals of the Commonwealth and States to be judicially noticed 51

55. Official seals to be judicially noticed 51

56. Certain signatures to be judicially noticed 51

57. United Kingdom proclamations, regulations etc., proof of 52

58. Australasian proclamations, regulations etc., proof of 54

59. Customs Act 1901 (Cwlth) proclamations, regulations etc., proof of 55

60. Australian States’ proclamations and acts of State, proof of55

61. WA proclamations, regulations etc., proof of 55

62. Documents admissible in the United Kingdom etc. to be admissible in WA 56

63. Foreign States’ proclamations, acts of State etc., proof of 56

64. Foreign States’ proclamations etc. admissible even if not sealed 56

65. Copies of public documents admissible in some cases 56

65A. Certified photographs from library admissible 57

66. Parliamentary proceedings in Australasia, proof of 57

67. Certain documents admissible without proof of signature, seal etc. 58

68. Register of British vessels etc., proof of 58

69. Newspaper proprietors, proof of register of 59

69A. WA registers, proof of 60

70. Statutes etc. of any country, proof of 60

71. Certain law reports and texts may be referred to as evidence of laws 60

72. Authoritative texts on history, science etc., reference to 61

73. Documents admitted into evidence may be impounded 61

73A. Reproductions admissible (best evidence rule modified) 61

73B. Certified reproductions of certain public documents etc., admissible without further proof 63

73N. Reproductions of documents over 30 years old, presumptions as to 64

73Q. Reproduced official seals and signatures to be judicially noticed 64

73U. Reproduction admissible subject to Stamp Act 1921 65

74. Gazettes of certain places, proof of 66

75. Government Printers’ publications, proof of 66

76. Her Majesty’s Stationery Office publications, status of 66

77. Acts of governors and ministers of States, proof of 66

78. Local laws, by‑laws and regulations, proof of 67

79. Incorporation of a company, proof of 67

79A. Document requiring attestation, proof of 69

79B. Terms used in s. 79B to 79G 69

79C. Documentary evidence, admissibility of 70

79D. Evidence admitted under s. 79C, weight and effect of 73

79E. Qualified person, evidence as to credibility of 74

79F. Dispute as to happening of event 75

80. Judgments, orders etc., proof of 76

81. Documents properly authenticated to be given faith and credit 76

82. Telegraphic messages, notice to admit may be given in civil proceedings 76

83. Telegraphic messages, proof of sending of 77

84. Telegraphic messages, proof of receipt of 77

85. Official documents, procedure for sending by telegraph 78

86. Copies so transmitted to be as valid as originals 79

87. Original document may be inspected 79

88. Penalty for false certificates 80

89. Banker’s book entries are evidence of transactions etc. 80

90. Banker’s books, proof of 80

91. Banker’s books, copies to be certified 81

92. Bank accounts, bank officer may give evidence about 81

92A. Australian and foreign banks, application to of s. 89 to 92 81

93. Bank officers not compellable in some cases 81

94. Banker’s books, Supreme Court may order inspection of 82

95. Costs under s. 93 and 94 82

96. Supreme Court Judge’s powers may be exercised by other judicial officers 83

97. Evidence to be on oath except in some cases 83

100A. Oath may be dispensed with in some cases 84

102. Interpreters, oaths etc. for 86

103. Interpreters, oath etc. may be dispensed with 86

104A. Person appointed by foreign court etc. may take or receive evidence and administer oath 87

105. Oaths, Affidavits and Statutory Declarations Act 2005, application of 87

106A. Terms used in s. 106B to 106T and Schedule 7 88

106B. Children under 12 may give sworn evidence 90

106C. Child under 12 and mentally impaired witness may give unsworn evidence 91

106D. Corroboration warning on evidence of child not to be given 91

106E. Child witness entitled to support 91

106F. Child witness may be given assistance 92

106G. Cross‑examination of protected witness by unrepresented accused 92

106H. Child’s statement to another admissible in Sch. 7 proceedings 93

106HA. Visual recording of interviews with children 94

106HB. Admissibility in criminal proceedings of a visual recording of an interview with a child 95

106HC. Regulations about visual recording of interviews with children 97

106HD. Admissibility of visually recorded interviews generally 99

106I. Visual recording of child’s evidence, application for directions 99

106K. Child’s evidence in full, special hearing to take and record100

106M. Recording not to be altered without approval 101

106MA. Unauthorised possession or dealing in video‑taped evidence102

106MB. Broadcast of video‑taped evidence prohibited 103

106N. Video links or screening arrangements may be used 103

106O. Court may order that s. 106N does not apply 104

106P. Instructions to be given to jury 105

106Q. Identification of accused by child or special witness 105

106R. Special witnesses, measures to assist 105

106RA. Visually recording evidence of witnesses in criminal matters108

106S. Special hearings to consider what orders should be made 109

106T. Use of recordings made under s. 106K or 106N 109

109. Terms used in s. 109 to 114 112

110. Superior courts may make orders for obtaining evidence 112

111. Supreme Court may make orders for obtaining evidence for inferior courts 114

112. Exclusion of evidence in criminal proceeding 115

113. Operation of other laws 115

114. Regulations and rules of court for s. 109 to 113 116

115. Terms used in s. 115 to 118C 116

116. Application to the Supreme Court for assistance in obtaining evidence for proceedings in other court117

117. Supreme Court may make orders to assist in obtaining evidence 117

118. Privilege of witnesses 119

118A. Rules of court for s. 116 to 118 120

118B. Offence 120

118C. Operation of other laws 120

119. Fees to witnesses and interpreters in certain proceedings 121

120. Terms used in s. 120 to 132 123

121. WA court may take evidence or receive a submission by video link or audio link 124

122. Counsel entitled to practise 125

123. Recognized court may take evidence or receive a submission from a person in this State 125

124. Recognized court’s powers 126

125. Recognized court may make orders 126

126. Enforcement of an order under section 125 127

127. Privileges, protection and immunity of participants in proceedings in a recognized court 127

128. Recognized court may administer an oath in the State 128

129. Assistance to a recognized court 128

130. Contempt of a recognized court 128

131. Regulations for fees and expenses relating to the use of a video link or an audio link 129

132. Operation of other laws 129

The Second Schedule

Part 1 — Offences under The Criminal Code

Part 2 — Offences under the Road Traffic Act 1974

Part 4 — Offences under the Children and Community Services Act 2004

Part 5 — Offences under the Misuse of Drugs Act 1981

The Fourth Schedule

The Fifth Schedule

The Sixth Schedule

Schedule 7

Part A

Part B

Part C

Notes

Compilation table 143

Provisions that have not come into operation 149

Western Australia

Evidence Act 1906

An Act to consolidate and amend the statute law of evidence.

1. Short title

This Act may be cited as the Evidence Act 1906 1.

[2. Omitted under the Reprints Act 1984 s. 7(4)(f).]

3. Terms used in this Act

In this Act, unless the context or subject matter otherwise indicates or requires, —

Act includes Ordinance;

Australasian colony means and includes New South Wales, Queensland, South Australia, Tasmania, Victoria, and Western Australia during such time as such possessions constituted separate colonies; New Zealand, and any part of New Zealand during such time as such part constituted a separate colony; Fiji; and any other British possession which may at any time be created within Her Majesty’s possessions in Australasia;

bank means —

(a) an ADI (authorised deposit‑taking institution) as defined in section 5 of the Banking Act 1959 of the Commonwealth; or

(b) a bank constituted by a law of a State, a Territory or the Commonwealth;

bankers’ books and expressions referring to bankers’ books include ledgers, day books, cash books, account books, and all other books used in the ordinary business of the bank however such books are compiled, recorded or stored, whether in written form or on microfilm or by electronic process or otherwise;

colony includes province;

court includes the High Court of Australia, the Supreme Court, the District Court, the Children’s Court, the Family Court, the Magistrates Court, a warden’s court under the Mining Act 1978, and a court of summary jurisdiction;

document includes a part of a document;

examined copy means a copy proved to have been examined with the original, and to correspond therewith. The examination may be made either by one person reading both the original and the copy or by 2 persons, one reading the original and the other the copy, and it is not necessary that each should alternately read both;

Gazette means and includes the London Gazette, the Edinburgh Gazette, the Dublin Gazette, the Commonwealth of Australia Gazette and the Government Gazette, Royal Gazette, or other official gazette of any State or Australasian colony;

Government Printer means and includes the Printer to Her Majesty, and any person printing for the Government of the Commonwealth or of any State or Australasian colony, and any printer purporting to be the printer authorised to print the Statutes, Ordinances, Acts of State, or other public Acts of the Legislature of any Australasian colony, or otherwise to be the Government Printer of such colony;

judge means a Justice of the High Court of Australia and a Judge of the Supreme Court of Western Australia, and includes a Judge of The District Court of Western Australia, a Judge of the Family Court of Western Australia, a Judge or magistrate of the Children’s Court of Western Australia, a magistrate of the Magistrates Court, a coroner within the meaning of the Coroners Act 1996, and also any justice or justices of the peace sitting in court;

legal proceeding or proceeding includes any action, trial, inquiry, cause, or matter, whether civil or criminal, in which evidence is or may be given, and includes an arbitration;

person acting judicially means any person having, in Western Australia, by law or by consent of parties, authority to hear, receive, and examine evidence;

photograph means a durable facsimile of an original obtained by any photographic, photostatic or similar process;

prisoner means and includes any person committed to prison for punishment, or on remand, or for trial, safe custody, or otherwise;

State means a State of the Commonwealth;

the Commonwealth means the Commonwealth of Australia;

the State means the State of Western Australia or the colony of Western Australia prior to the establishment of the Commonwealth;

uncorroborated evidence, in relation to the conviction of a person accused of an offence, means evidence that is not corroborated in some material particular by other evidence implicating the accused person;

votes and proceedings shall be deemed to include journals and minutes, and any papers purporting to be printed by the authority of and to be laid before either House of the Parliament of the Commonwealth, or of any State or of any Australasian colony.

[Section 3 amended by No. 11 of 1964 s. 2; No. 111 of 1978 s. 2; No. 66 of 1987 s. 4; No. 70 of 1988 s. 35; No. 15 of 1991 s. 23; No. 73 of 1994 s. 4; No. 26 of 1999 s. 78(2); No. 71 of 2000 s. 3; No. 15 of 2003 s. 15; No. 59 of 2004 s. 89.]

4. Application of Act

All the provisions of this Act, except where the contrary intention appears, shall apply to every legal proceeding.

5. This Act not to derogate from existing powers

The provisions of this Act shall be in addition to and not in derogation of any powers, rights, or rules of evidence existing at common law, or given by any law at any time in force in the State not inconsistent with the provisions of this Act.

Competency and compellability of witnesses

6. Witnesses interested or convicted of offence

No person shall be excluded from giving evidence in any proceeding on the ground that he has or may have an interest in the matter in question, or in the result of the proceeding, or on the ground that he has previously been convicted of any offence.

7. Parties to civil proceedings and spouses and ex‑spouses of parties

In any civil proceeding the parties thereto and the persons on whose behalf such proceeding is brought or defended, and the wives, former wives, husbands and former husbands of such parties or persons respectively, shall, subject to the provisions of this Act, be competent and compellable to give evidence on behalf of either or any of the parties to such proceeding.

[Section 7 amended by No. 48 of 1991 s. 5.]

8. Accused persons in criminal cases

(1) Except as in this Act it is otherwise provided, every person charged with an offence shall be a competent but not a compellable witness at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person: Provided as follows —

(a) a person so charged shall not be called as a witness except upon his own application;

[(b) deleted]

(c) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution;

(d) a person charged and being a witness in pursuance of this section may be asked any question in cross‑examination, notwithstanding that it would tend to criminate him as to the offence charged;

(e) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless —

(i) the proof that he has committed or been convicted of such other offence is admissible in evidence to show that he is guilty of the offence wherewith he is then charged; or

(ii) he has personally, or by his advocate, asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution or a person who died as a result of the offence wherewith he is then charged; or

(iii) he has given evidence against any other person charged with the same offence;

(f) when paragraph (e)(ii) or (iii) is or becomes applicable to any person charged who gives evidence for the defence, it shall be open to the prosecution, or to any other person charged against whom he has given evidence, to call evidence, that such person is of bad character or has been convicted of or charged with any offence other than that with which he then stands charged, notwithstanding that the case for the prosecution or of such other person charged may already have been closed;

(g) every person called as a witness in pursuance of this section shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence.

[(2) repealed]

[Section 8 amended by No. 16 of 1913 s. 2; No. 48 of 1991 s. 6; No. 71 of 2000 s. 4; No. 27 of 2002 s. 30; No. 84 of 2004 s. 41.]

9. Spouses and ex‑spouses of accused persons in criminal cases

(1) In any criminal proceeding (and at every stage of the proceeding), the wife or husband of an accused shall, subject to this Act, be —

(a) competent to give evidence on behalf of the prosecution, the accused or any person being tried jointly with the accused;

(b) compellable to give evidence on behalf of the accused or any person being tried jointly with the accused; and

(c) compellable to give evidence on behalf of the prosecution against the accused or any person being tried jointly with the accused if —

(i) the accused is charged with an offence under a provision mentioned in the Second Schedule or under a repealed Code section;

(ii) the accused is charged with attempting or conspiring to commit, or with inciting the commission of, an offence under a provision mentioned in the Second Schedule or under a repealed Code section;

(iii) the accused is charged on the complaint of the wife or husband with an offence committed with respect to the property of the wife or husband; or

(iv) the wife or husband is compelled, under another enactment, to give that evidence.

(2) In any criminal proceeding (and at every stage of the proceeding), a former wife or former husband of an accused shall, subject to this Act, be competent and compellable to give evidence on behalf of the prosecution, the accused or any person being tried jointly with the accused.

[(3) repealed]

(4) Nothing in this section shall operate to compel an accused in any criminal proceeding to give evidence in the proceeding.

(5) If the wife or husband of an accused in any criminal proceeding is called as a witness for the prosecution but is not a compellable witness for the prosecution, it is the duty of the judge to inform the wife or husband that she or he is not compellable to give evidence on behalf of the prosecution if she or he is unwilling to do so.

(6) In subsection (1) —

repealed Code section means a repealed section of The Criminal Code that, before it was repealed, enacted an offence constituted by acts or omissions that are substantially the same as the acts or omissions that constitute an offence under a section of The Criminal Code that is mentioned in Part 1 of the Second Schedule.

[Section 9 inserted by No. 48 of 1991 s. 7; amended by No. 71 of 2000 s. 5; No. 27 of 2002 s. 31; No. 84 of 2004 s. 82.]

[10. Repealed by No. 48 of 1991 s. 8.]

11. Court may compel answer to incriminating question

(1) Whenever in any proceeding any person called as a witness, or required to answer any interrogatory, declines to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him, the judge may, if it appears to him expedient for the ends of justice that such person should be compelled to answer such question or interrogatory, tell such person that, if he answers such question or interrogatory, and other questions or interrogatories that may be put to him, in a satisfactory manner, he will grant him the certificate hereinafter mentioned.

(2) Thereupon such person shall no longer be entitled to refuse to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him; and thereafter if such person shall have given his evidence to the satisfaction of the judge, the judge shall give such person a certificate to the effect that he was called as a witness or interrogated in the said proceeding and that his evidence was required for the ends of justice, and was given to his satisfaction.

(2a) Where in a proceeding a person is given a certificate under subsection (2) in respect of any evidence, a statement made by him, as part of that evidence, in answer to a question or interrogatory is not admissible in evidence in criminal proceedings against the person other than on a prosecution for perjury committed in the proceeding.

(3) In subsections (1) and (2), judge does not include a justice of the peace when constituting the Magistrates Court or the Children’s Court, whether sitting alone or with another justice of the peace.

[Section 11 amended by No. 47 of 1990 s. 4 2; No. 15 of 1991 s. 23; No. 59 of 2004 s. 89.]

11A. Judge may restrict publication of evidence where s. 11 certificate given

(1) Where in a proceeding a judge gives to a person a certificate under section 11(2) in respect of any evidence and the judge considers that publication of a report of the evidence or of the giving of the certificate may tend to prejudice any prosecution that has been or may be brought against the person, the judge may make an order prohibiting publication of a report of or relating to the evidence, or any part of the evidence, and may extend the order to include a report of the fact that the certificate was granted.

(2) A person who fails to comply with an order made under subsection (1) commits a contempt of the Supreme Court and is punishable accordingly by that court.

(3) Where a body corporate fails to comply with an order made under subsection (1) and it is proved that the failure occurred with the consent, connivance, or authority of any director, manager, secretary or other officer of the body corporate, or of any member of the managing body of the body corporate, or of any person who was purporting to act in any such capacity, he or she as well as the body corporate commits the contempt and is punishable under subsection (2).

[Section 11A inserted by No. 47 of 1990 s. 5.]

12. Witnesses in revenue cases may be compelled to give evidence

(1) In any proceeding for the breach of any Act relating to —

(a) duty under the Duties Act 2008; or

(b) the public revenues; or

or in any proceeding brought by or on behalf of or against the Crown under or in pursuance of the provisions of any such Act, the judge may require any person, except the accused in proceedings under paragraph (c), to be examined as a witness.

(2) A person so required to be examined as aforesaid shall not be excused from being so examined, or from answering any question put to him touching any such breach as aforesaid, on the ground that his evidence will tend to incriminate him.

(3) If any such person refuses to be examined, or to answer any such question as aforesaid, he shall be deemed to be a witness appearing under a subpoena and refusing without lawful cause or excuse to be sworn or to give evidence.

(4) Every person required to be examined under this section touching any such breach as aforesaid, who on such examination makes to the best of his knowledge true and faithful discovery of all matters whereon he is so examined touching such breach and thereby gives evidence tending to incriminate himself shall, on application, receive from the judge before whom he is examined a certificate in writing under his hand that he has made such true and faithful discovery.

(5) In subsections (1) and (4), judge does not include a justice of the peace when constituting the Magistrates Court or the Children’s Court, whether sitting alone or with another justice of the peace.

[Section 12 amended by No. 15 of 1991 s. 23; No. 59 of 2004 s. 89; No. 12 of 2008 s. 52.]

13. Certificate under s. 12 may be pleaded in bar to prosecution

If any person examined as a witness under section 12 receives the certificate therein mentioned (but not otherwise) he shall be freed from all criminal prosecutions and penal actions, and from all penalties, forfeitures, and punishments to which he was liable for anything done before that time in respect of the matters touching which he is so examined:

Provided that nothing herein contained shall make such certificate pleadable in bar of any indictment or information brought against such person for perjury committed in such proceedings as aforesaid.

[Section 13 amended by No. 47 of 1990 s. 6.]

14. Customs prosecutions, accused compellable

In every Customs prosecution, except for an indictable offence or for an offence directly punishable by imprisonment, the accused is compellable to give evidence.

[Section 14 amended by No. 84 of 2004 s. 82.]

15. Persons may be examined without a subpoena

Any person present at any legal proceeding wherein he might have been compellable to give evidence and produce documents by virtue of a subpoena or other summons or order duly issued and served for that purpose, shall be compellable to give evidence and produce documents then in his possession and power, in the same manner, and in case of refusal shall be subject to the same penalties and liabilities, as if he had been duly subpoenaed or summonsed for that purpose.

16. Witnesses failing to attend trial

(1) Where any person duly bound by recognizance or served with a subpoena, summons, or order to attend in any court as a witness at the trial of any case, civil or criminal, fails to appear when called in open court, either at such trial or upon the day appointed for such trial, the court may —

(a) upon proof of such recognizance or of his having been duly served with such subpoena, summons, or order, call upon him to show cause why execution upon such recognizance or an attachment for disobedience to such subpoena, summons, or order should not be issued against him; or

(b) upon proof of such recognizance or service, and also that his non‑appearance is without just cause or reasonable excuse, and upon oath that he will probably be able to give material evidence, issue a warrant to bring him before the court to give evidence at such trial.

(2) Such proof may be oral before the court or by affidavit.

17. Procedure on non‑appearance of a witness

(1) Every rule or order to show cause as aforesaid may —

(a) be made returnable before the court itself at the then sittings or at some future sitting; or

(b) in respect of the non‑appearance of a witness at a Circuit Court or on the trial of a case pending in the Supreme Court, be made returnable in the Supreme Court.

(2) On the return of any such rule or order, the court may deal with the case as the Supreme Court might and would have done upon a rule to the like effect issued out of that court.

Privilege of witnesses

18. Communications during marriage

Subject to the provisions of section 9, a husband shall not be compellable in any proceeding to disclose any communication made to him by his wife, or by him to his wife, during the marriage, and a wife shall not be compellable in any proceeding to disclose any communication made to her by her husband, or by her to her husband, during the marriage:

Provided that this section shall not apply, in any proceeding in the Supreme Court in its divorce and matrimonial causes jurisdiction, or in any proceeding in the Family Court of Western Australia, to any husband and wife who are both parties to such proceeding.

[Section 18 amended by No. 111 of 1978 s. 3; No. 48 of 1991 s. 9.]

Spouses competent to give evidence as to non‑access

[Heading inserted by No. 16 of 1956 s. 2.]

19. Evidence of non‑access

In any proceedings including proceedings pending at the commencement of the Evidence Act Amendment Act 1956 1, either party to a marriage may give evidence proving or tending to prove that the parties to the marriage did not have sexual relations with each other at any particular time notwithstanding that such evidence would show or tend to show that any child born to the wife during the marriage was illegitimate.

[Section 19 inserted by No. 16 of 1956 s. 2.]

Sexual assault communications privilege

[Heading inserted by No. 46 of 2004 s. 10.]

19A. Terms used in these provisions

(1) In this section and sections 19B to 19M —

application for leave means an application for leave to disclose or require disclosure of a protected communication in, or in connection with, any criminal proceedings;

counselling communication means a communication —

(a) made in confidence by a person upon or in respect of whom sexual assault was committed or is alleged to have been committed (the complainant) to another person (the counsellor) who is counselling the complainant in relation to any harm the complainant may have suffered;

(b) made in confidence to or about the complainant by the counsellor in the course of the counselling process;

(d) made in confidence by or to the counsellor to or by another person who is counselling, or has at any time counselled, the complainant,

and includes a communication made through an interpreter;

counsels has the meaning given to that term in subsection (2);

disclose a protected communication means to disclose, or adduce or produce anything that would disclose —

(a) the protected communication; or

(b) the contents of a document recording the protected communication;

harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear);

protected communication means a counselling communication made by, to or about a complainant and includes —

(a) a counselling communication made before the commission, or alleged commission, of sexual assault;

(b) a counselling communication not made in connection with sexual assault or alleged sexual assault or any condition arising from sexual assault or alleged sexual assault; and

protected person, in relation to a protected communication, means —

(a) the complainant;

(b) any person who made the protected communication; or

require disclosure of a protected communication includes —

(a) to require (whether by the issue of a subpoena or any other process or procedure) the production of a document recording the protected communication; and

(b) to seek an order of the court that will, if made, result in the disclosure of the protected communication or the production of a document recording the protected communication;

support person means a parent, carer or other supportive person who is present when a person counsels the complainant to facilitate communication between the complainant and the counsellor or to further the counselling process in some other way;

supporting affidavit means the affidavit accompanying an application for leave;

the protection provisions means this section and sections 19B to 19M.

(2) A person counsels another person if —

(a) the person has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm; and

(b) the person —

(i) listens to and gives verbal or other support or encouragement to the other person; or

(ii) advises, gives therapy to or treats the other person,

whether or not for fee or reward.

(3) In the protection provisions, a reference to a document recording a protected communication —

(a) is a reference to any part of the document that records a protected communication or any report, observation, opinion, advice, recommendation or other matter that relates to the protected communication made by a protected person; and

(b) includes a reference to any copy, reproduction or duplicate of that part of the document.

(4) For the purposes of the definition of “counselling communication” in subsection (1), a communication can be regarded as being made in confidence even if it is made in the presence of a support person or through or in the presence of an interpreter.

[Section 19A inserted by No. 46 of 2004 s. 10.]

19B. Protected communications recorded electronically

For the purposes of the protection provisions, if —

(a) a document recording a protected communication is stored electronically; and

(b) a written document recording the protected communication could be created by use of equipment that is usually available for retrieving or collating such stored information,

the document stored electronically is to be dealt with as if it were a written document so created.

[Section 19B inserted by No. 46 of 2004 s. 10.]

19C. Protected communications not to be disclosed in criminal proceedings except with leave of court

(1) A person cannot disclose or require disclosure of a protected communication in, or in connection with, any criminal proceedings except with, and in accordance with, the leave of the court.

(2) If a subpoena that purports to require the disclosure of a protected communication is issued without the leave of the court required by subsection (1), the subpoena is of no effect.

(3) An application for leave must be made to the court in writing and must be accompanied by an affidavit stating why the applicant has a legitimate forensic purpose for having leave to disclose or require disclosure of the protected communication.

(4) If the court considers that the supporting affidavit establishes a prima facie case that the applicant has a legitimate forensic purpose for having the leave, the court is to —

(a) fix a day and time for hearing the application; or

(b) determine that the application will be heard during the criminal proceedings referred to in subsection (1),

and send notification of when the application will be heard, together with copies of the application and the supporting affidavit, to —

(d) each protected person identified in the application or the supporting affidavit; and

(e) any other person identified in the application or the supporting affidavit as a person to whom the protected communication was made.

(5) If the court does not consider that the supporting affidavit establishes a prima facie case that the applicant has a legitimate forensic purpose for having the leave, the court is to notify the applicant accordingly and the application for leave is taken to have been refused.

(6) Section 19E(2) and (3) apply in relation to the court’s consideration of whether the supporting affidavit establishes a prima facie case that the applicant has a legitimate forensic purpose for having the leave.

(7) In this section —

party means a party to the criminal proceedings referred to in subsection (1).

[Section 19C inserted by No. 46 of 2004 s. 10.]

19D. Procedure on hearing of application for leave

(1) A protected person or a person referred to in section 19C(4)(e) may appear, or be represented by counsel or solicitor, at the hearing of an application for leave and is to be informed of that right when a notification is sent under section 19C(4)(d) or (e).

(2) If there is a jury, the court is to hear and determine an application for leave in the absence of the jury.

[Section 19D inserted by No. 46 of 2004 s. 10.]

19E. Application for leave to be dismissed if there is no legitimate forensic purpose for it

(1) On the hearing of an application for leave, leave is to be refused by the court if the applicant does not satisfy the court —

(a) that the applicant has a legitimate forensic purpose for having leave to disclose or require disclosure of the protected communication; and

(b) that other evidence to the same effect as —

(i) the protected communication; or

(ii) the contents of the document recording the protected communication,

as the case may be, is not available.

(2) In order to establish that the applicant has a legitimate forensic purpose under subsection (1)(a) it is not sufficient for the applicant —

(a) to assert, without proving, one or more of the following —

(i) that the protected communication discloses a prior inconsistent statement of the complainant;

(ii) that the protected communication relates to the credibility of the complainant or another witness in the criminal proceedings;

(iii) that the protected communication relates to the reliability of the testimony of the complainant merely because the complainant has received or is receiving counselling;

(b) to prove one or more of the following —

(i) that the protected communication exists;

(ii) that the protected communication relates to activity that is the subject of the criminal proceedings;

(iii) that the protected communication was made close in time to the activity that is the subject of the criminal proceedings;

(iv) that the protected communication reveals allegations of the commission of sexual assault against the complainant by a person other than the applicant.

(3) Subsection (2) does not limit —

(a) the matters which the court can consider in deciding whether the applicant has a legitimate forensic purpose under subsection (1)(a); or

(b) the grounds on which the court can decide that the applicant does not have a legitimate forensic purpose under subsection (1)(a).

[Section 19E inserted by No. 46 of 2004 s. 10.]

19F. Determination of application

(1) If the court is satisfied as to the matters set out in section 19E(1)(a) and (b), the court is to determine the application for leave.

(2) The court may, if it thinks it necessary in order to enable it to determine the application, conduct a preliminary examination of the evidence that is the subject of the application.

(3) For the purpose of a preliminary examination the court may require a protected person —

(a) to provide written answers to questions; or

(b) to appear for oral examination.

(4) A preliminary examination is to be conducted in the absence of the parties.

[Section 19F inserted by No. 46 of 2004 s. 10.]

19G. Public interest test

(1) In determining the application for leave, the court may grant leave to disclose, or require the disclosure of, the protected communication if, and only if, the court determines that it is in the public interest to do so.

(2) For the purposes of subsection (1) the court is to have regard to the following —

(a) the extent to which disclosing, or requiring the disclosure of, the protected communication is necessary to allow the applicant for leave to make a full defence;

(b) whether the evidence of the protected communication or the contents of the document recording the protected communication will have substantial probative value;

(c) the likelihood that disclosing, or requiring the disclosure of, the protected communication will affect the outcome of the proceedings;

(d) the public interest in ensuring that complainants receive effective counselling, and the extent to which failure to preserve the confidentiality of protected communications may dissuade complainants from seeking counselling or diminish the effectiveness of counselling;

(e) the public interest in ensuring that adequate records are kept of counselling communications;

(f) the likelihood that disclosing, or requiring the disclosure of, the protected communication will cause harm to the complainant, and the nature and extent of that harm;

(g) any other matter that the court considers relevant.

[Section 19G inserted by No. 46 of 2004 s. 10.]

19H. Effect of consent

(1) The protection provisions do not prevent a protected communication from being disclosed or being required to be disclosed in, or in connection with, any criminal proceedings if the complainant has consented to the disclosure.

(2) Consent is not effective for the purposes of this section unless —

(a) it is given in writing; and

(b) it is given expressly for the purposes of the protection provisions.

(3) This section does not apply if the complainant is a child.

[Section 19H inserted by No. 46 of 2004 s. 10.]

19I. Loss of sexual assault communications privilege: misconduct

(1) The protection provisions do not prevent the production or adducing of evidence of a communication made, or the production of a document prepared, in the furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty.

(2) For the purposes of this section, if the commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that —

(a) the fraud, offence or act was committed; and

(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act,

the court may find that the communication was so made or document so prepared.

[Section 19I inserted by No. 46 of 2004 s. 10.]

19J. Ancillary orders

Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of, or the contents of a document recording, a protected communication, the court may —

(a) order that all or part of the evidence be heard or document produced in camera;

(b) make any orders relating to the production, inspection, copying or reproduction of the document that, in the opinion of the court, are necessary to protect the safety and welfare of any protected person;

(c) make any orders relating to the suppression of publication of all or part of the evidence given before the court that, in its opinion, are necessary to protect the safety and welfare of any protected person; and

(d) make any orders relating to disclosure of identity information that would tend to identify any protected person that, in the opinion of the court, are necessary to protect the safety and welfare of any protected person.

[Section 19J inserted by No. 46 of 2004 s. 10.]

19K. Inadmissibility of evidence that must not be adduced or given

Evidence that, because of the protection provisions, cannot be disclosed or required to be disclosed in proceedings is not admissible in the proceedings.

[Section 19K inserted by No. 46 of 2004 s. 10.]

19L. Application of other laws

(1) The protection provisions do not affect the operation of any rule of law in relation to evidence in criminal proceedings except to the extent that they expressly or necessarily have that effect.

(2) Without limiting subsection (1), the protection provisions do not affect the operation of a rule of law so far as it relates to the inspection of a document required to be produced in, or in connection with, criminal proceedings.

(3) Subject to subsections (4) and (4a), sections 238 and 239 of the Children and Community Services Act 2004 and section 46 of the Child Care Services Act 2007 do not apply to the production or disclosure of a protected communication in criminal proceedings.

(4) If in criminal proceedings leave is given under the protection provisions to require disclosure of a departmental record as defined in subsection (1) of section 238 of the Children and Community Services Act 2004, subsections (5) to (8) of that section apply as if the departmental record had been produced in response to a requirement referred to in subsection (2) of that section.

(4a) If in criminal proceedings leave is given under the protection provisions to require disclosure of a child care record as defined in subsection (1) of section 46 of the Child Care Services Act 2007, subsections (5) to (8) of that section apply as if the child care record had been produced in response to a requirement referred to in subsection (2) of that section.

(5) The protection provisions do not affect the operation of section 240 of the Children and Community Services Act 2004.

[Section 19L inserted by No. 46 of 2004 s. 10; amended by No. 19 of 2007 s. 69.]

19M. Regulations as to disclosure of protected communications

The Governor may make regulations as to —

(a) the forms to be used for an application for leave and the supporting affidavit;

(b) the manner in which a protected communication is to be described in an application for leave or the supporting affidavit;

(d) the procedure relating to an application for leave; and

(e) any other matter that is necessary or convenient to be prescribed for the purposes of the protection provisions.

[Section 19M inserted by No. 46 of 2004 s. 10.]

Impeaching credit of witnesses

20. How far a party may discredit his own witness

A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but may contradict him by other evidence, if in the opinion of the judge he is hostile to the party producing him.

21. Cross‑examination as to and proof of prior inconsistent statement

Every witness under cross‑examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject‑matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it.

The same course may be taken with a witness upon his examination in chief or re‑examination, if the judge is of opinion that the witness is hostile to the party by whom he was called and permits the question.

[Section 21 amended by No. 16 of 1913 s. 3.]

22. Procedure for purposes of s. 21

A witness under cross‑examination, or a witness whom the judge, under the provisions of the last preceding section, has permitted to be examined by the party who called him as to previous statements inconsistent with his present testimony, may be questioned as to —

(a) a previous statement made or supposed to have been made by him in writing or reduced into writing; or

(b) evidence given or supposed to have been given by him before any justice,

without such writing or the deposition of such witness being shown to him.

But if it is intended to contradict him by such writing or deposition, his attention must, before such contradictory proof can be given, be called to those parts of the writing or deposition which are to be used for the purpose of so contradicting him.

Provided that the judge may, at any time during the trial, require the writing or deposition to be produced for his inspection, and may thereupon make use of it for the purposes of the trial as he thinks fit.

23. Cross‑examination as to and proof of previous conviction

(1) A witness may be questioned as to whether he has been convicted of any indictable offence, and, upon being so questioned, if he either denies or does not admit the fact, or refuses to answer, the cross‑examining party may prove such conviction.

(2) A certificate containing the substance and effect only (omitting formal parts) of the conviction for such offence, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court where the offender was convicted, shall, upon proof of the identity of the person, be sufficient evidence of such conviction without proof of the signature or official character of the person appearing to have signed the same.

(3) A fee of 50 cents, and no more, shall be payable for such certificate.

[Section 23 amended by No. 113 of 1965 s. 4.]

Protection in respect of certain questions

[Heading inserted by No. 47 of 1990 s. 7.]

24. Questions tending to criminate

Except as hereinbefore provided, nothing in this Act shall render any person compellable to answer any question tending to criminate himself.

25. Cross‑examination as to credit

(1) If any question put to a witness upon cross‑examination relates to a matter not relevant to the proceeding, except in so far as it affects the credit of the witness by injuring his character, it shall be the duty of the court to decide whether or not the witness shall be compelled to answer it, and the court may, if it thinks fit, inform the witness that he is not obliged to answer it.

(2) In exercising this discretion, the court shall have regard to the following considerations —

(a) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;

(b) such questions are improper if the imputation they convey relates to matters so remote in time, or of such character, that the truth of the imputation would not affect, or would affect in a slight degree only, the opinion of the court as to the credibility of the witness on the matter to which he testifies;

(c) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence.

(3) Nothing herein shall be deemed to make any witness compellable to give evidence upon any matter he is now by law privileged from disclosing.

25A. Cross‑examination by accused in person

(1) In any criminal proceeding where an accused person who is not represented by counsel wishes to cross‑examine a witness, the court, having regard to the nature of the charge, the wishes of the witness, and the availability of any necessary facilities or equipment, may —

(a) order that during the cross‑examination the accused person and the witness are to be in separate rooms and that either —

(i) the witness is to be in a room outside the courtroom that is connected to the courtroom by a video link as defined in section 120; or

(ii) the accused person is to be held in a room outside the courtroom that is connected to the courtroom by a video link as defined in section 120;

(b) if it is not possible to make an order under paragraph (a), an order that during the cross‑examination the accused person and the witness are to be separated by a screen, one‑way glass, or other device, that —

(i) prevents the witness from seeing the accused person; and

(ii) allows the accused person, the judge and any jury to see the witness;

(c) whether or not an order is made under paragraph (a) or (b), make an order that forbids the accused person from putting a question to the witness directly and requires the question, having been first stated by the accused person to the judge or a person approved by the judge, to be repeated accurately to the witness by the judge or approved person.

(2) An order made under subsection (1)(a)(ii) may be made despite section 88 of the Criminal Procedure Act 2004.

(3) An order made under subsection (1) may be varied or revoked at any time.

(4) If an order is made under subsection (1) in proceedings before a jury, the judge is to instruct the jury that the procedure used for the cross‑examination is a routine practice of the court and that they should not draw any inference as to the accused person’s guilt from the use of the procedure.

(5) This section is in addition to and does not limit the operation of sections 106A to 106T, and does not prevent orders from being made under both subsection (1) and one or more of those sections.

[Section 25A inserted by No. 59 of 2004 s. 87; amended by No. 84 of 2004 s. 41.]

26. Improper questions

(1) The court may disallow a question put to a witness in cross‑examination, or inform the witness that it need not be answered, if the question is —

(a) misleading; or

(b) unduly annoying, harassing, intimidating, offensive, oppressive or repetitive.

(2) Subsection (1) extends to a question that is otherwise proper if the putting of the question is unduly annoying, harassing, intimidating, offensive or oppressive.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account —

(a) any relevant condition or characteristic of the witness, including age, language, personality and education; and

(b) any mental, intellectual or physical disability to which the witness is or appears to be subject.

[Section 26 inserted by No. 46 of 2004 s. 11.]

27. Prohibited questions not to be published

(1) It shall not be lawful for any person to print or publish any question or inquiry which the court —

(a) has, under the provisions of the last preceding section, disallowed and has ordered shall not be published; or

(b) has informed the witness he is not obliged to answer and has ordered shall not be published.

(2) Every person who prints or publishes any question in breach of this section commits a contempt of court, and shall be liable to punishment for such contempt as if the contempt had been committed in face of the court against which the contempt is committed and on the like proceedings as in such, last‑mentioned case.

[Section 27 amended by No. 46 of 2004 s. 12.]

Manner of giving evidence

[Heading inserted by No. 71 of 2000 s. 6.]

27A. Form of evidence

(1) Evidence may be given in the form of a chart, summary or other explanatory document if it appears to the court that the document would be likely to aid comprehension of other evidence that has been given or is to be given.

(2) Nothing in this section affects the operation of section 27B.

[Section 27A inserted by No. 71 of 2000 s. 6.]

27B. Manner of giving voluminous or complex evidence

(1) If a court is satisfied that particular evidence that a party to a proceeding proposes to adduce is so voluminous or complex that it would be difficult to assess or comprehend it if it were adduced in narrative form, the court may direct the party to adduce the evidence in another form, including in the form of a chart, summary or other explanatory document.

(2) The direction may also —

(a) specify the form of the evidence;

(b) specify the witness who is to give the evidence;

(d) contain directions to ensure that each other party is served with copies of the evidence in the form in which it is to be given and is given sufficient time to examine it;

(e) contain directions as to the extent (if any) to which the voluminous or complex evidence is to be adduced by the party.

(3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section.

(4) In subsection (3) —

opinion rule means the common law rule that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

[Section 27B inserted by No. 71 of 2000 s. 6.]

General rules of evidence

[28. Repealed by No. 84 of 2004 s. 41.]

29. Intention to defraud, proof of

On the trial of a person charged with any offence of which an intent to injure or deceive or defraud, or an intent to enable another person to deceive or defraud, is an element, it shall not be necessary to prove an intent to injure or deceive or defraud any particular person or an intent to enable any particular person to deceive or defraud any particular person.

30. Proof by attesting witness unnecessary in certain cases

It shall not be necessary to prove, by the attesting witness, any instrument to the validity of which attestation is not requisite, and such instrument may be proved as if there had been no attesting witness thereto.

31. Comparison of disputed hand‑writing

Comparison of a disputed hand‑writing with any writing proved to the satisfaction of the judge to be genuine may be made by witnesses, and such writings and the testimony of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.

31A. Propensity and relationship evidence

(1) In this section —

propensity evidence means —

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers —

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

[Section 31A inserted by No. 46 of 2004 s. 13.]

32. Admissions by accused persons in criminal cases

An accused person, either personally or by his counsel or solicitor, in his presence, may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence.

32A. Derogation of privilege in civil proceedings

(1) This section applies only in respect of —

(a) civil proceedings in or before a court;

(b) arbitrations; and

(2) In this section —

privilege means privilege that would, apart from this section and the rules of court mentioned in subsection (3), attach to documents prepared for the purpose of pending or contemplated proceedings or in connection with the obtaining or giving of legal advice; and

rules of court, without affecting the operation of section 40 of the Interpretation Act 1918 3, includes rules, regulations, and by‑laws prescribing the practice and procedure for and in relation to proceedings in respect of which this section applies.

(3) There shall be a derogation of privilege to the extent that rules of court applicable to expert evidence so provides.

(4) Without limiting any other power to make rules of court in respect of any tribunal of the kind that is referred to in subsection (1)(c), such rules of court may make provision for prescribing matters relating to expert evidence, including the disclosure, by the furnishing of copies of reports or otherwise, of the nature and substance of the expert evidence to be given, and including the exclusion of expert evidence in case of non‑compliance with the rules relating to expert evidence or with any order for the disclosure of the nature and substance of expert evidence, and in relation thereto —

(a) for the imposition of differing requirements depending on different classes of cases, different classes of matters, or other different circumstances; and

(b) for the conferring of a discretionary authority.

[Section 32A inserted by No. 111 of 1976 s. 3.]

Rules in particular cases

[33, 34. Repealed by No. 70 of 1988 s. 36.]

35. Perjury charge, corroboration not required

(1) Notwithstanding any rule of law to the contrary, a person may be convicted of committing perjury or of counselling or procuring the commission of perjury upon the uncorroborated evidence of one witness.

[(2) repealed]

[Section 35 inserted by No. 70 of 1988 s. 37; amended by No. 36 of 1992 s. 4.]

36. Perjury charge, proof of trial etc.

On the trial of a person charged with an offence of which the giving of false testimony by any person at the trial of a person charged with an offence is an element, a certificate setting out the substance and effect only, without the formal parts, of the indictment or prosecution notice, and the proceedings at the trial, and purporting to be signed by the officer having the custody of the records of the court where the indictment or prosecution notice was tried, or by his deputy, shall be sufficient evidence of the trial, without proof of the signature or official character of the person who appears to have signed the certificate.

[Section 36 amended by No. 84 of 2004 s. 80.]

36A. Terms used in s. 36A to 36C

(1) In this section and in sections 36B, 36BA, 36BC, 36BD, 36BE and 36C —

accused in relation to a hearing or trial, means any accused at the hearing or trial whether or not that accused is charged with a sexual offence;

complainant in relation to proceedings for a sexual offence means a person upon or in respect of whom it is alleged that a sexual offence was committed, attempted or proposed;

repealed Code section means a repealed section of The Criminal Code that, before it was repealed, enacted an offence constituted by acts or omissions that are substantially the same as the acts or omissions that constitute an offence under a section or Chapter of The Criminal Code that is mentioned in paragraph (a) or (b) of the definition of “sexual offence” in this subsection.

sexual offence means an offence —

(a) under section 186 or 191(1)(a) of The Criminal Code or section 7, 15, or 18 of the Prostitution Act 2000;

(b) under Chapter XXXI of The Criminal Code;

(ba) under a repealed Code section;

(d) of conspiring to commit any of the offences under paragraph (a), (b) or (ba).

(2) In this section and in sections 36B, 36BA, 36BC and 36BE, proceedings for a sexual offence means proceedings in which a person stands charged with a sexual offence whether the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable on the charge to be found guilty of any other offence.

[Section 36A inserted by No. 74 of 1985 s. 15; amended by No. 70 of 1988 s. 38; No. 14 of 1992 s. 13; No. 17 of 2000 s. 64; No. 71 of 2000 s. 7; No. 70 of 2004 s. 19(3); No. 84 of 2004 s. 85(2); No. 2 of 2008 s. 42(2) and (3).]

36B. Sexual reputation of complainant, evidence of

In proceedings for a sexual offence, evidence relating to the sexual reputation of the complainant shall not be adduced or elicited by or on behalf of an accused.

[Section 36B inserted by No. 74 of 1985 s. 15; amended by No. 14 of 1992 s. 13; No. 84 of 2004 s. 82.]

36BA. Sexual disposition of complainant, evidence of

In proceedings for a sexual offence, evidence relating to the disposition of the complainant in sexual matters shall not be adduced or elicited by or on behalf of an accused.

[Section 36BA inserted by No. 74 of 1985 s. 15; amended by No. 14 of 1992 s. 13; No. 84 of 2004 s. 82.]

36BC. Sexual experience of complainant, evidence of

(1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any).

(2) The court shall not grant leave under subsection (1) unless satisfied that —

(a) what is sought to be adduced or elicited has substantial relevance to the facts in issue; and

(b) the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.

[Section 36BC inserted by No. 74 of 1985 s. 15; amended by No. 14 of 1992 s. 13; No. 84 of 2004 s. 82.]

36BD. Lack of complaint, jury warning about

Where on the trial of a person for a sexual offence or an offence under Chapter XXII of The Criminal Code (as enacted at any time) evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making any such complaint, the judge shall —

(a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and

(b) inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence.

[Section 36BD inserted by No. 74 of 1985 s. 15; amended by No. 14 of 1992 s. 13; No. 71 of 2000 s. 8.]

36BE. Expert evidence of child behaviour

(1) This section applies to any proceedings for a sexual offence in respect of a complainant who was under the age of 18 years at the time of the alleged offence.

(2) Evidence by an expert on the subject of child behaviour about any or all of the following —

(a) child development and behaviour generally;

(b) child development and behaviour in cases where children have been the victims of sexual offences,

that is relevant to the proceedings is admissible in them notwithstanding that the evidence —

(d) is a matter of common knowledge; or

(e) is relevant only to the credibility of the complainant.

(3) If evidence described in subsection (2) is admitted in a trial by jury, this section does not affect any duty of the trial judge to warn the jury about any matter relating to the complainant’s evidence; but any such warning must be consistent with that evidence.

[Section 36BE inserted by No. 2 of 2008 s. 42(1).]

36C. Names of complainants not to be published

(1) Subject to subsections (5) and (6) after a person is accused of a sexual offence no matter likely to lead members of the public to identify the complainant and, in the case of a complainant who is attending a school, no matter likely to lead members of the public to identify the school which the complainant attends, in relation to that accusation shall be published in a written publication available to the public or be broadcast, except by leave of the court which has or may have jurisdiction to try the person accused for that offence.

(2) If any matter is published or broadcast in contravention of subsection (1), the following persons, namely —

(a) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(b) in the case of any other publication, the person who publishes it; and

(c) in the case of a broadcast, any body corporate which transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,

shall be guilty of an offence and liable on summary conviction to a fine of, in the case of an individual, $5 000 or, in the case of a body corporate, $25 000.

(3) For the purposes of this section a person is accused of a sexual offence if —

(a) the person is charged in a prosecution notice or an indictment with committing a sexual offence;

(b) the person appears before a court charged with a sexual offence; or

and references in this section to an accusation alleging a sexual offence shall be construed accordingly.

(4) In this section —

a broadcast means a broadcast by wireless telegraphy of a sound or visual images intended for general reception, and cognate expressions shall be construed accordingly;

complainant, in relation to a person accused of a sexual offence or an accusation alleging a sexual offence, means the person against whom the offence is alleged to have been committed; and

written publication includes a film, a sound track and any other record in permanent form but does not include an indictment or other document prepared for use in particular legal proceedings.

(5) Nothing in this section prohibits the publication or broadcasting, in consequence of an accusation alleging a sexual offence, of matter consisting only of a report of legal proceedings other than proceedings at, or intended to lead to, or on an appeal arising out of, a trial at which the accused is charged with that offence, and the giving of leave in pursuance of this section does not affect the operation of subsection (1) at any time before the leave is given.

(6) Nothing in this section prohibits the publication or broadcasting of matter identifying a complainant if —

(a) prior to the publication or broadcasting that complainant authorised in writing the publication or broadcasting of the matter; and

(b) at the time the complainant authorised the publication or broadcasting, he or she was at least 18 years old and was not a person who, because of mental impairment (as defined in The Criminal Code), is incapable of making reasonable judgments in respect of the publication or broadcasting of such matters,

proof of which lies on the publisher or broadcaster.

[Section 36C inserted by No. 145 of 1976 s. 6; amended by No 74 of 1985 s. 16; No. 14 of 1992 s. 13; No. 71 of 2000 s. 9; No. 59 of 2004 s. 89; No. 84 of 2004 s. 41 and 80.]

[37. Repealed by No. 70 of 1988 s. 40.]

[38. Repealed by No. 14 of 1992 s. 14.]

[39. Repealed by No. 108 of 1982 s. 29.]

40. Customs prosecutions, effect of averments in

In every Customs prosecution the averment of the prosecution or plaintiff contained in the information, declaration, or claim shall be deemed to be proved in the absence of proof to the contrary, but so that —

(a) when an intent to defraud the revenue is charged, the averment shall not be deemed sufficient to prove the intent; and

(b) in all proceedings for an indictable offence, or for an offence directly punishable by imprisonment, the guilt of the accused must be established by evidence.

[Section 40 amended by No. 84 of 2004 s. 82.]

41. Customs prosecutions, proof of appointment of officers

On the trial of a person charged with any offence of which the fact that some person was at some particular time an officer of Customs, or was at some particular time employed for the prevention of smuggling, is an element, the averment in the indictment or prosecution notice that any person therein mentioned was an officer of Customs, or was employed for the prevention of smuggling at any time therein stated, shall be sufficient evidence of the fact until the contrary is shown.

[Section 41 amended by No. 84 of 2004 s. 80.]

41A. Stealing and receiving charges, evidence of ownership of property stolen from ships, wharves, etc.

(1) On the prosecution of any person for the stealing of any property in or from any vessel, barge, or boat, or from any dock, wharf, or quay, or from any store or shed used in connection with or adjoining any such dock, wharf, or quay, or for receiving any such property, knowing it to have been so stolen, or for having on his person or in any place or conveying in any manner anything which may be reasonably suspected of being so stolen —

(a) evidence may be given of any writing, printing, or marks upon the said property without producing the original writing, printing or marks, or requiring the production thereof by notice or otherwise; and

(b) any apparently genuine document purporting to be the bill of lading, manifest, shipping receipt, delivery order, specification, schedule, packing list, or invoice relating to the said property, or to property which from the description thereof in the document or from the writing, printing, or marks thereon, or on any package containing the same as detailed in the document, coupled with any other relevant circumstances, may be reasonably assumed to be the same as the property the subject of the prosecution, shall be admissible in evidence on production and without further proof, and shall be prima facie evidence of the particulars and facts contained therein and that the ownership of the property, the subject matter of the prosecution, is in the consignee referred to in the document or his assignee.

(2) In deciding whether any property described as aforesaid may be reasonably assumed to be the same as the property the subject of the prosecution, regard shall be had to the source from which the document was produced, and the circumstances of its receipt or custody by the person producing it, or from whom it was obtained for the purposes of the prosecution.

(3) It shall be no objection to the admissibility in evidence of any such document as aforesaid that the statement of the place in or from which the stealing took place forms no part of the charge, if the evidence adduced on the prosecution indicates that the stealing did in fact take place in or from a place such as is hereinbefore mentioned.

[Section 41A inserted by No. 19 of 1921 s. 2.]

42. Evidence on trial for defamation

On the trial of a person charged with the unlawful publication of defamatory matter which is contained in a periodical, after evidence sufficient in the opinion of the court has been given of the publication by the accused person of the number or part of the periodical containing the matter complained of, other writings or prints purporting to be other numbers or parts of the same periodical previously or subsequently published, and containing a printed statement that they were published by or for the accused person, shall be admissible in evidence on either side, without further proof of publication of them.

The term periodical includes any newspaper, review, magazine, or other writing or print, published periodically.

[43. Repealed by No. 10 of 1960 s. 2.]

44. Stealing charges, proof of receipt of money by accused, proof of general deficiency

(1) On the trial of a person charged with stealing money, an entry in any book of account shown to be kept by the accused person, or kept in, under, or subject to his charge or supervision, purporting to be an entry of the receipt of any money, shall be evidence that the money so purporting to have been received was so received by him.

(2) On the trial of a person charged with any such offence, it shall not be necessary to prove the stealing by the accused person of any specific sum of money, if, on examination of the books of account or entries kept or made by him, or kept or made in, under, or subject to his charge or supervision, or by any other evidence, there is proof of a general deficiency and if the jury are satisfied that the accused person stole the deficient money or any part of it.

45. Seals and stamps for the revenue or post office, proof of

On the trial of a person charged with any offence relating to any seal or stamp used for the purposes of the public revenue, or of the post office in any part of Her Majesty’s dominions, or in any foreign State, a despatch from one of Her Majesty’s principal Secretaries of State, transmitting to the Governor any stamp, mark, or impression and stating it to be a genuine stamp, mark, or impression, of a die, plate, or other instrument, provided, made or used by or under the direction of the proper authority of the country in question, for the purpose of expressing or denoting any stamp duty or postal charge, shall be admissible as evidence of the facts stated in the despatch; and the stamp, mark, or impression, so transmitted may be used by the court and jury and by witnesses for the purposes of comparison.

46. Receiving charges, proof of knowledge that goods were stolen

Where proceedings are taken against any person for having received anything which has been obtained by means of any act constituting an indictable offence, knowing the same to have been so obtained, evidence may be given at any stage of the proceedings that there was found in the possession of such person any other thing obtained by such means within the preceding period of 12 months, and such evidence may be taken into consideration for the purpose of proving that such person knew the property which forms the subject of the proceedings taken against him to have been obtained by means of an act constituting an indictable offence.

46A. Sunrise and sunset, proof of

Where in any proceedings it is material to prove the time of sunrise or sunset, or both, in the State, in any area of the State, or at any place in the State on a particular day and such a time has, under the authority of the Perth Astronomical Observatory or such other body as the Governor by proclamation nominates in lieu of the Perth Astronomical Observatory, been specified by a notice in the Government Gazette, the production of the Government Gazette containing the notice shall be evidence that the time of sunrise or sunset, or both, in the State, in that area, or in that place, as the case may be, on that day was the time so specified.

[Section 46A inserted by No. 33 of 1978 s. 2.]

47. Conviction, acquittal and identity, proof of

(1) A conviction or an acquittal of any person may be proved in any proceeding whatever by producing a record or extract of such conviction or acquittal, and by giving proof of the identity of the person in respect of whom the conviction or acquittal is sought to be proved with the person appearing in the record or extract of conviction or acquittal to have been convicted or acquitted.

(1a) For the purpose of proving the identity of a person alleged to have been convicted, whether before or after the commencement of the Evidence Act Amendment Act 1956 1, an affidavit substantially in the form in the Sixth Schedule shall be admissible in evidence in all courts and shall be prima facie evidence that the person whose fingerprints are exhibited thereto —

(a) is the person, who, in any document exhibited to the affidavit and purporting to be a record or abstract or certificate of conviction or a certified copy of a record or abstract or certificate of conviction, is referred to as having been convicted;

(b) has been convicted of the offences mentioned in the affidavit.

(2) A record or extract of a conviction or acquittal may, in the case of an indictable offence, consist of a certificate containing the substance and effect only (omitting the formal part of the indictment and conviction or acquittal), and purporting to be signed by the clerk of the court or other officer having the custody of the records of the court before which such conviction or acquittal took place, or purporting to be signed by the deputy of such clerk or officer; and, in the case of a summary conviction or acquittal, may consist of a copy of such conviction or acquittal purporting to be signed by any justice of the peace having jurisdiction over the offence in respect of which such conviction or acquittal took place, or to be signed by the proper officer of the court before which such conviction or acquittal took place, or by the clerk or other officer of any court to which such conviction or acquittal has been returned.

(3) A record or extract of any conviction or acquittal made in pursuance of this section shall be admissible in evidence without proof of the signature or official character of the person appearing to have signed the same.

(4) A conviction or an acquittal in any part of Her Majesty’s dominions may be proved under this section in respect of any person, and a conviction or an acquittal before the passing of this Act shall be admissible in the same manner as if it had taken place after the passing thereof.

(5) The mode of proving a conviction or an acquittal or identity authorised by this section shall be in addition to, and not in exclusion of, any other authorised mode of proving such conviction or acquittal or identity.

(6) A conviction shall be presumed not to have been appealed against or quashed or set aside until the contrary is shown.

[Section 47 amended by No. 16 of 1956 s. 3.]

[48. Repealed by No. 70 of 1988 s. 41.]

49. Actions for seduction

In any action to recover damages for seduction brought by a parent of the woman seduced, or by a person standing to her in the place of a parent, it shall not be necessary to allege or prove that she was in the service of the plaintiff, or that he sustained any loss of service by reason of the seduction.

50. Corroboration warnings not generally required

(1) In this section corroboration warning in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.

(2) On the trial of a person on indictment for an offence —

(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and

(b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances.

[Section 50 inserted by No. 70 of 1988 s. 42; amended by No. 36 of 1992 s. 5.]

50A. Transcripts, proof of

(1) A document consisting of a transcript of a recording that is admitted in evidence in any proceedings is admissible in those proceedings as evidence of the contents of the recording if the transcript bears a certificate that purports to be signed by the person who transcribed the recording and meets the requirements of subsection (2).

(2) A certificate under subsection (1) must —

(a) state the full name, address and occupation of the certifier;

(b) identify the recording to which the transcript refers;

(c) state the day upon which the certifier made the transcript, the condition of the recording at that time, the extent of any damage to the recording and the extent and nature of any difficulty encountered by the certifier in making an accurate and complete transcription of the contents of the recording;

(d) certify that the transcript has been made in good faith and is an accurate and complete transcription of the contents of the recording, except as stated under paragraph (c); and

(e) if the certifier was authorised under the Surveillance Devices Act 1998 to listen to the recording to which the transcript relates, state the details of that authorisation.

[Section 50A inserted by No. 56 of 1998 s. 46.]

50B. DNA evidentiary certificate

(1) In this section —

authorised officer means the person who holds the office prescribed for the purposes of this definition;

business day means a day that is not a Saturday, Sunday or public holiday;

DNA profile means the result from DNA analysis;

examination, of a thing, includes testing the thing;

forensic scientist means a person, or a person who holds an office, prescribed for the purposes of this definition;

hearing day, for a criminal proceeding, means the day fixed for the start of the trial of the proceeding;

party, to a criminal proceeding, means the prosecutor or a person charged in the proceeding;

thing includes anything in or on or otherwise attached to the thing.

(2) This section applies to a criminal proceeding.

(3) A certificate purporting to be signed by a forensic scientist and stating any of the following matters is evidence of the matter —

(a) that a stated thing was received at a stated laboratory on a stated day;

(b) that the thing was examined at the laboratory on a stated day or between stated days;

(d) that a forensic scientist —

(i) examined the laboratory’s records relating to the receipt, storage and examination of the thing, including any examination of the thing that was done by a person other than the forensic scientist; and

(ii) confirms that the records indicate that all quality assurance procedures for the receipt, storage and examination of the thing that applied in the laboratory at the time the thing was examined were complied with.

(4) If a party intends to rely on the certificate, the party must —

(a) at least 10 business days before the hearing day, give a copy of the certificate to each other party; and

(b) at the hearing, call the forensic scientist to give evidence, unless the parties agree otherwise.

(5) If the authorised officer receives a written request from a party for a copy of the laboratory’s records relating to the receipt, storage and examination of the thing, the authorised officer must give the party a copy of the records within 7 business days after receiving the request.

(6) If a party intends to dispute a matter stated in the certificate, the party must, at least 5 business days before the hearing day, give the authorised officer and each other party written notice of the matter to be disputed.

(7) A party disputing a matter stated in the certificate may, with the leave of the court, require the party relying on the certificate to call any person involved in the receipt, storage or examination of the thing to give evidence at the hearing.

(8) The court may give leave only if satisfied —

(a) that an irregularity may exist in relation to the receipt, storage or examination of the thing about which the person to be called is able to give evidence; and

(b) that it is in the interests of justice that the person be called to give evidence.

(9) Any equipment used in examining the thing at the laboratory is taken to have given accurate results in the absence of evidence to the contrary.

(10) A document required to be given under this section may be given personally, by post or by facsimile or another form of electronic communication.

(11) On application made to it, the court may, before or after a time fixed under this section expires, extend or abridge the time by an order fixing, extending or abridging the time, whether or not the application is made before the time expires.

(12) The Governor may make regulations for the purposes of the definitions of “authorised officer” and “forensic scientist” in subsection (1).

[Section 50B inserted by No. 24 of 2004 s. 4.]

Evidence of witnesses in prison

51. Prisoner required to give evidence may be brought up on order

When any person is detained in any prison under sentence or awaiting trial, or on remand for any offence, or for any other cause, and a trial, inquiry, inquest, or inquisition is pending at which it is deemed necessary that such prisoner should be present, any judge, or, in criminal proceedings the Sheriff of Western Australia or the chief executive officer, within the meaning of that expression as defined in section 3 of the Prisons Act 1981, may make an order under his hand directing any gaoler to produce such person, and such order shall be sufficient warrant or authority to any gaoler for producing such prisoner.

[Section 51 amended by No. 31 of 1993 s. 41.]

52. Expense of bringing up prisoner

In every civil proceeding the judge shall, and in every other proceeding he may, before making such order, require the applicant to deposit a sum sufficient to pay the expense of bringing up the prisoner, maintaining him while out of prison, and returning him thither, including the expense of his custody from the time he leaves until the time he returns to the prison.

Judicial notice

53. Commonwealth and States etc., and their Acts to be judicially noticed

(1) All courts and all persons acting judicially shall take judicial notice —

(a) of the Commonwealth and the States and of every Australasian colony, and the extent of their respective territories; and

(b) of all Acts of the Parliament of the United Kingdom and of the Commonwealth, and of any State, and of any Australasian colony, passed before or after the commencement of this Act.

(2) Any paper purporting to be a copy of any Act of the Parliament of the United Kingdom or of the Commonwealth, or of any State, or of any Australasian colony, whether passed before or after the commencement of this Act, and purporting to be printed by the Government Printer, shall prima facie be deemed to be a correct copy of such Act without any further proof thereof.

The date which appears on any such copy purporting to be the day on which such Act received the Royal Assent, or was proclaimed to commence, shall be received for all purposes as evidence of the date of such assent, or commencement.

54. Seals of the Commonwealth and States to be judicially noticed

All courts and all persons acting judicially shall take judicial notice of the impression of the seal of the Commonwealth and of the seal of any State, and of the seal of any Australasian colony, without evidence of the seal having been impressed or any other evidence relating thereto.

55. Official seals to be judicially noticed

When by any Act any seal or stamp is authorised to be used by any court, officer, body corporate, or any other person, judicial notice shall be taken of the impression of such seal or stamp without evidence of the same having been impressed or any other evidence relating thereto.

56. Certain signatures to be judicially noticed

All courts and all persons acting judicially shall take judicial notice of —

(a) the official signature of any person who holds or has held the office of Governor‑General, Minister of State, President of the Senate, Speaker of the House of Representatives, Secretary to the Federal Executive Council, Justice of the High Court, Principal Registrar, Deputy Registrar or District Registrar of the High Court, President or Deputy President of the Commonwealth Court of Conciliation and Arbitration, Industrial Registrar or Deputy Industrial Registrar, or President or Judge or member of any Federal Court, or of the Inter‑State Commission, or any office to which the Governor‑General, by order published in the Gazette, declares this section to apply; and

(b) the official signature of every person who is for the time being, and of every person who has at any time been Governor, Minister of the Crown, Judge of the Supreme Court, Prothonotary, Master, Principal Registrar, Registrar, or Deputy Registrar, or Chief Clerk of the Supreme Court, Commissioner of Titles, Registrar of Titles, Deputy Commissioner of Titles or Assistant Registrar of Titles, the Registrar or a Deputy Registrar of Births, Deaths and Marriages, Government Statist or Assistant or Deputy Government Statist, Judge or Presiding Magistrate or Registrar or Deputy Registrar of any County Court, or District, Family or Local Court, or Court of Mines, Warden, Chairman of any Court of General or Quarter Sessions, Judge of any Court of Bankruptcy or Insolvency, or Police or stipendiary or other magistrate, or justice of the peace in any State or part or district of any State, or in any Australasian colony or part of district of any Australasian colony, and of any person holding in any State or in any Australasian colony or part or district of any State or Australasian colony any office corresponding to any of the aforesaid offices, and of any person holding in any such State or colony any office to which the Governor may, at any time, by order published in the Gazette, declare this section to apply; and

(d) the fact that such person holds or has held such office,

if the signature or seal purports to be attached or appended to any judicial or official document.

[Section 56 amended by No. 16 of 1956 s. 4; No. 111 of 1978 s. 4; No. 67 of 1979 s. 50; No. 40 of 1998 s. 12(a); No. 6 of 2003 s. 85(1); No. 59 of 2004 s. 89.]

Proof of certain documents

57. United Kingdom proclamations, regulations etc., proof of

(1) Evidence of any Royal Proclamation, Order of Her Majesty’s Privy Council, order, regulation, despatch, or any other instrument whatsoever made or issued before or after the commencement of this Act by Her Majesty, or by Her Majesty’s Privy Council, or by or under the authority of any of Her Majesty’s Secretaries of State, or any department of Her Majesty’s Government in the United Kingdom may be given in any court or before any person acting judicially —

(a) by the production of a copy of the London Gazette or by the production of a copy of the Government Gazette purporting to contain a reprint or copy of such Proclamation, Order of the Privy Council, order, regulation, despatch, or other instrument;

(b) by the production of a copy of such proclamation purporting to be printed by the Government Printer, or under the authority of Parliament;

(c) by the production in the case of any proclamation, order, or regulation issued by Her Majesty or by the Privy Council of a copy or extract purporting to be certified to be true by the Clerk of the Privy Council, or by any one of the Lords or others of the Privy Council, and, in the case of any proclamation, order, or regulation issued by or under the authority of any departments of the Government or officers mentioned in the first column of the Fourth Schedule, by the production of a copy or extract purporting to be certified to be true by the person or persons specified in the second column of the said Schedule in connection with such department or officer.

(2) Any copy or extract made in pursuance of this section may be in print or in writing, or partly in print or partly in writing.

(3) No proof shall be required of the handwriting or official position of any person certifying, in pursuance of this section, to the truth of any copy of or extract from any proclamation, order, or regulation.

(4) In this section the words Privy Council include Her Majesty in Council and the Lords and others of Her Majesty’s Privy Council, or any of them, and any Committee of the Privy Council that is not specially named in the Fourth Schedule.

[Section 57 amended by No. 16 of 1956 s. 5.]

58. Australasian proclamations, regulations etc., proof of

(1) Evidence of any proclamation, order in council, commission, order, regulation, or other instrument whatsoever made or issued before or after the commencement of this Act by the Governor‑General of the Commonwealth, or by the Governor of any State or of any Australasian colony, or by or under the authority of any Minister of the Crown for the Commonwealth, or for any State or Australasian colony, or of any public commission or board, may be given in any court or before any person acting judicially in any of the following modes, that is to say —

(a) by the production of a copy of the Gazette purporting to contain the same;

(b) by the production of a document purporting to be a copy thereof, and purporting to be printed by the Government Printer or by the authority of the Government;

(c) by the production (in the case of any proclamation, order, commission, or regulation issued or made by the Governor‑General of the Commonwealth) of a document purporting to be certified by the Secretary to the Federal Executive Council as a true copy thereof or extract therefrom;

(d) by the production (in the case of any proclamation, order in council, commission, order, regulation, or other instrument whatsoever made or issued by the Governor of any State, or of any Australasian colony) of a copy or extract purporting to be certified by the Clerk of the Executive Council of such State or Australasian colony;

(e) by the production (in the case of any proclamation, order, commission, regulation, or other instrument made or issued by or under the authority of any Minister of the Crown) of a document purporting to be certified as a true copy thereof or extract therefrom by such Minister or any other Minister of the Crown.

(2) No proof shall be required of the handwriting or official position of any person certifying in pursuance of this section.

59. Customs Act 1901 (Cwlth) proclamations, regulations etc., proof of

The production of the Commonwealth of Australia Gazette containing any proclamation, gazette notice, or regulation appearing to have been issued or made under the Customs Act 1901, or the production of any document certified by the Comptroller General of Customs or a State Collector of Customs to be a true copy of or extract from any such proclamation, gazette notice, or regulation issued or made under the said Act, shall be prima facie evidence of the issue or making of such proclamation, gazette notice, or regulation, and that the same is in force.

60. Australian States’ proclamations and acts of State, proof of

Evidence of any proclamation or other act of State of any State may be given in any court or before any person acting judicially by the production of a copy thereof either —

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

(b) purporting to be sealed with the seal of that State.

61. WA proclamations, regulations etc., proof of

Evidence of any proclamation, order, regulation, or notice made or issued before or after the commencement of this Act by or under the authority of the Governor, or of the Governor in Executive Council, or of the Legislative Council or Legislative Assembly, or of the chief executive officer of any department of the Public Service, or of any body, listed in the first column of the Fifth Schedule mentioned, may be given in any court or before any person acting judicially by the production of a copy of or extract therefrom, such copy or extract purporting to be certified to be true by the person or persons specified in the second column of the said Schedule in connection with the officer, department, or body in the said first column mentioned.

[Section 61 amended by No. 28 of 2006 s. 35.]

62. Documents admissible in the United Kingdom etc. to be admissible in WA

Every document admissible in evidence for any purpose in any court of justice in any part of Her Majesty’s dominions, without proof of the seal or stamp or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same, shall be admitted in evidence to the same extent and for the like purpose in any court or before any person acting judicially in Western Australia, without proof of the seal or stamp or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same.

63. Foreign States’ proclamations, acts of State etc., proof of

(1) All proclamations, treaties, and other acts of State of any foreign State, or of any British possession may be proved in any court or before any person acting judicially, either by examined copies or by copies sealed with the seal of the foreign State or British possession to which the original document belongs.

(2) Any copy purporting to be sealed as in this section directed shall be admitted in evidence in every case where the original document could have been so admitted, without any proof of the seal.

64. Foreign States’ proclamations etc. admissible even if not sealed

Proclamations, international treaties, and orders in council of any country, although not proved in the manner provided by the last preceding section, may nevertheless be received in evidence in any court or before any person acting judicially, if such court or person considers the same to be authentic.

65. Copies of public documents admissible in some cases

(1) Whenever in any part of Her Majesty’s dominions any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, any copy thereof or extract therefrom shall be admissible in evidence in any court or before any person acting judicially, if —

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

(b) it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted.

(2) Every officer to whose custody the original of any book or document of such a public nature as aforesaid is entrusted in Western Australia is hereby required to furnish a certified copy of such book or extract therefrom to any person applying at a reasonable time, and paying a reasonable sum for the same, not exceeding 4 cents for every folio of 72 words.

[Section 65 amended by No. 113 of 1965 s. 4(1).]

65A. Certified photographs from library admissible

(1) A photograph that is certified by an officer of the Library Board of Western Australia, as being a true reproduction of, or of part of, any book or other printed matter or of any document, in the custody and control of that board, is admissible in evidence, to the same extent that the book or other printed matter or the original document would, if produced, be admissible.

(2) In this section, officer of the Library Board of Western Australia means an officer appointed by that board under the provisions of section 6 of the Library Board of Western Australia Act 1951; and judicial notice shall, for the purposes of this section, be taken of the official signature of every such officer.

[Section 65A inserted by No. 11 of 1964 s. 3.]

66. Parliamentary proceedings in Australasia, proof of

All documents purporting to be copies of the votes and proceedings of either House of the Parliament of the Commonwealth, or of any State, or of any Australasian colony, if purporting to be printed by the Government Printer, shall, on the mere production of the same, be admitted as evidence in any court, or before any person acting judicially.

67. Certain documents admissible without proof of signature, seal etc.

Whenever by any Act of the Imperial Parliament, or of the Parliament of any State or of any Australasian colony, now or hereafter to be in force —

(a) any certificate; or

(b) any official or public document; or

(d) any copy of or extract from any document or by‑law, or entry in any register or other book, or of or from any other proceeding,

is admissible in evidence in any legal proceeding in the United Kingdom or in the particular State or colony, the same shall respectively be admitted in evidence in all courts and before all persons acting judicially in Western Australia, if it purports to be certified or sealed, or impressed with a stamp, or sealed and signed, or signed alone, or impressed with a stamp and signed, as directed by such Act, without any proof —

(i) of the seal or stamp, where a seal or stamp is necessary; or

(ii) of the signature; or

(iii) of the official character of the person appearing to have signed the same,

and without any further proof thereof.

68. Register of British vessels etc., proof of

(1) Every register of a vessel kept under any of the Acts of the Imperial Parliament or of any British possession relating to the registry of any British or colonial vessels, may be proved in any court or before any person or persons acting judicially either by the production of the original, or by an examined copy thereof, or by a copy thereof purporting to be certified under the hand of the person having the charge of the original, and which person is hereby required to furnish such certified copy to any person applying at a reasonable time for the same, upon payment of the sum of 25 cents.

(2) Every such register or such copy of a register, and also every certificate of registry granted under any of the Acts of the Imperial Parliament or of any British possession relating to the registry of any British or colonial vessels, and purporting to be signed as required by law, shall be received in evidence in any court, or before any person acting judicially, as prima facie proof of all the matters contained or recited in such register when the register or such copy thereof as aforesaid is produced, and of all the matters contained or recited in or endorsed on such certificate of registry when the said certificate is produced.

[Section 68 amended by No. 113 of 1965 s. 4.]

69. Newspaper proprietors, proof of register of

Every copy of an entry in or extract from the register of newspaper proprietors established under the Newspaper Libel and Registration Act 1884, purporting to be certified by the Registrar of the Supreme Court or his deputy for the time being, or under the official seal of the Registrar, shall be received as conclusive evidence of the contents of the said register of newspaper proprietors, so far as the same appear in such copy or extract, without proof of the signature thereto, or of the seal of office affixed thereto.

Every such certified copy or extract shall, in all proceedings, civil or criminal, be accepted as sufficient prima facie evidence of all matters and things thereby appearing, unless and until the contrary thereto is shown.

[Section 69 amended by No. 74 of 2003 s. 142(2).]

69A. WA registers, proof of

When by any Statute in force in the State any person is required to keep any register, then any register purporting or appearing to be kept pursuant to the Statute shall (save in so far as the contrary may be proved) be deemed to be and be admissible in evidence as a complete and accurate register and record and —

(a) any document purporting to be a copy of the register and to be certified as correct by the person aforesaid; or

(b) a Gazette containing what purports to be a copy of the register; or

(c) any document purporting to be a copy of the register and to be printed by the Government Printer or by the authority of the Government of the State,

shall be prima facie evidence of the contents of the register as existing on the date when the document or Gazette purports to have been certified, or printed, or issued, and the production thereof in any court or before any person shall (save in so far as it may be proved not to be a true copy) be equivalent to the production of the original register.

[Section 69A inserted by No. 16 of 1913 s. 4.]

70. Statutes etc. of any country, proof of

Books purporting to have been printed or published, whether before or after the commencement of this Act, under the authority of the Government of any country, or by the printer to such Government, and purporting to contain Statutes, Ordinances, or other written laws in force in such country, shall, on production, be admitted and received by all courts and persons, acting judicially as prima facie evidence of such laws.

71. Certain law reports and texts may be referred to as evidence of laws

Printed books purporting to contain Statutes, Ordinances, or other written laws in force in any country, although not purporting to have been printed or published by authority as aforesaid, books purporting to contain reports of decisions of courts or judges in such country, and text‑books treating of the laws of such country, may be referred to by all courts and persons acting judicially for the purpose of ascertaining the laws in force in such country; but such courts or persons shall not be bound to accept or act on the statements in any such books as evidence of such laws.

72. Authoritative texts on history, science etc., reference to

All courts and persons acting judicially may, in matters of public history, literature, science, or art, refer, for the purposes of evidence, to such published books, maps, or charts as such courts or persons consider to be of authority on the subjects to which they respectively relate.

73. Documents admitted into evidence may be impounded

Where any document has been received in evidence, the court or person acting judicially admitting the same may direct that such document be impounded and kept in the custody of some officer of the court, or other proper person, until further order.

Reproduction of documents

[Heading inserted by No. 20 of 1966 s. 3.]

73A. Reproductions admissible (best evidence rule modified)

(1) A document that accurately reproduces the contents of another document is admissible in evidence before a court in the same circumstances, and for the same purposes, as that other document, whether or not that other document still exists.

(2) In determining whether a particular document accurately reproduces the contents of another, a court is not bound by the rules of evidence and —

(a) may rely on its own knowledge of the nature and reliability of the processes by which the reproduction was made;

(b) may make findings based on a certificate in the prescribed form signed by a person with knowledge and experience of the processes by which the reproduction was made;

(c) may make findings based on a certificate in the prescribed form signed by a person who has compared the contents of both documents and found them to be identical; or

(d) may act on any other basis it considers appropriate in the circumstances.

(3) This section applies to a reproduction made —

(a) by an instantaneous process;

(b) by a process in which the contents of a document are recorded by photographic, electronic or other means, and the reproduction is subsequently produced from that record;

(d) in any other way.

(4) If a reproduction is made by a process referred to in subsection (3)(c), the process shall be presumed to reproduce accurately the contents of the document purportedly reproduced unless the contrary is proved.

(5) If so requested by a party to the proceedings, a court shall give reasons for determining that a document is or is not an accurate reproduction.

(6) A person who signs a certificate for the purposes of this section knowing it to be false or misleading in any material particular commits an indictable offence and is liable on conviction to imprisonment for 7 years.

(7) This section does not apply to or in respect of a copy of a document if the copy is admissible under another written law.

[Section 73A inserted by No. 71 of 2000 s. 10.]

73B. Certified reproductions of certain public documents etc., admissible without further proof

(1) If a reproduction of a document that is or at any time was in the custody or under the control of the Registrar of Births, Deaths and Marriages, the Registrar of Titles, Commissioner for Corporate Affairs or the Government Statist bears a certificate that purports to be signed by the Registrar of Births, Deaths and Marriages, the Registrar of Titles, an Assistant Registrar of Titles, Commissioner for Corporate Affairs, a Deputy Commissioner for Corporate Affairs, an Assistant Commissioner for Corporate Affairs, or the Government Statist, as the case requires, certifying that it is a reproduction of that document, the reproduction is admissible in evidence without further proof as if it were the document of which it is certified to be a reproduction.

(2) If a reproduction of a document that is at any time filed in a court or of the official record of any proceedings in a court bears a certificate purporting to be signed by the registrar, clerk or other proper officer of that court certifying that it is a reproduction of that document or that record, the reproduction is admissible in evidence without further proof as if it were the document or record of which it is certified to be a reproduction.

(3) Where the Registrar of Births, Deaths and Marriages, the Registrar of Titles, Commissioner for Corporate Affairs, the Government Statist or the registrar, clerk or proper officer of a court is served with legal process to produce a document or record in a court or before a person acting judicially, it is sufficient answer to that process if the person to whom it is addressed sends by prepaid post or causes to be delivered to the registrar, clerk or proper officer of the court in which the document or record is to be produced or the person before whom the document or record is to be produced, a reproduction of the document or record certified as provided in subsection (1) or (2) as the case requires.

[Section 73B inserted by No. 20 of 1966 s. 4; amended by No. 90 of 1975 s. 3; No. 67 of 1979 s. 51; No. 40 of 1998 s. 12(b).]

[73C‑73M. Repealed by No. 71 of 2000 s. 11(a).]

73N. Reproductions of documents over 30 years old, presumptions as to

A presumption that may be made in respect of a document over 30 years old may be made with respect to a reproduction of that document admitted in evidence in all respects as if the reproduction were the document.

[Section 73N inserted by No. 20 of 1966 s. 15; amended by No. 71 of 2000 s. 12.]

[73P. Repealed by No. 71 of 2000 s. 11(b).]

73Q. Reproduced official seals and signatures to be judicially noticed

Where an Act or law requires a court or person acting judicially to take judicial notice of the seal or signature of any court, person or body corporate appearing on a document and a reproduction of that document is admitted in evidence in any proceedings before the court or person acting judicially, the court or person acting judicially shall take judicial notice of the image of the seal or signature on the reproduction to the same extent as it or he would be required to take judicial notice of the seal or signature on the document.

[Section 73Q inserted by No. 20 of 1966 s. 17; amended by No. 71 of 2000 s. 13.]

[73R‑73T. Repealed by No. 71 of 2000 s. 11(c).]

73U. Reproduction admissible subject to Stamp Act 1921

(1) Notwithstanding the provisions of this Division, where a document is chargeable with duty under a duties Act then, subject to that Act, a reproduction of the document is not admissible under this Division in any proceedings before a court or person acting judicially unless —

(a) the reproduction of the document shows or establishes to the satisfaction of the court or the person or it is otherwise so established that the document was stamped in accordance with that Act; or

(b) where the reproduction does not so show or establish and it is not otherwise so established, the provisions of that Act which relate to documents that are not stamped in accordance with that Act are complied with with respect to the reproduction as though it were the document.

(2) Subject to this section, stamp duty is not chargeable under a duties Act on —

(a) a reproduction of a document made in accordance with this Division; or

(b) an affidavit or statutory declaration made for the purposes of this Division.

(3) In this section —

duties Act means the Stamp Act 1921 or the Duties Act 2008;

stamped means stamped or endorsed to indicate duty under a duties Act.

[Section 73U inserted by No. 20 of 1966 s. 21; amended by No. 41 of 1995 s. 9; No. 45 of 2002 s. 11; No. 12 of 2008 s. 52.]

[73V. Repealed by No. 71 of 2000 s. 11(d).]

Proof of certain matters

74. Gazettes of certain places, proof of

The mere production of a paper purporting to be the London Gazette, the Edinburgh Gazette, the Dublin Gazette, the Commonwealth of Australia Gazette, or the Gazette of any State or of any Australasian colony shall, before all courts and persons acting judicially, be evidence that the paper is such Gazette, and was published on the day on which it bears date.

75. Government Printers’ publications, proof of

The mere production of a paper purporting to be printed by the Government Printer, or by the authority of the Imperial Government or the Government of the Commonwealth, or of any State, or of any Australasian colony, shall, before all courts and persons acting judicially, be evidence that the paper was printed by the Government Printer or by such authority.

76. Her Majesty’s Stationery Office publications, status of

Where by this Act or any other enactment, whether passed before or after this Act, it is provided that a copy of any Act of Parliament, proclamation, order, regulation, rule, warrant, circular, list, gazette, or document, shall be conclusive evidence or have any other effect when purporting to be printed by the Government Printer, or the Queen’s Printer, or a printer authorised by Her Majesty, whatever may be the precise expression used, such copy shall also be conclusive evidence, or evidence, or have the said effect as the case may be if it purports to be printed under the superintendence or authority of Her Majesty’s Stationery Office.

77. Acts of governors and ministers of States, proof of

Where by any law at any time in force the Governor‑General or the Governor of any State or of any Australasian colony, or any Minister of the Crown for the Commonwealth or a State, or any Australasian colony, is authorised or empowered to do any act, production of the Gazette purporting to contain a copy or notification of any such act shall, before all courts and persons acting judicially, be evidence of the act having been duly done.

78. Local laws, by‑laws and regulations, proof of

Where by any Act of the Commonwealth or of any State, power to make local laws, by‑laws or regulations is conferred upon any person or body, and any printed paper purporting to be such local laws, by‑laws or regulations, and to be printed by the Government Printer or by the authority of the Government of the Commonwealth or of the State, shall, before all courts and persons acting judicially, be evidence —

(a) that local laws, by‑laws or regulations in the words printed in such paper were duly made by such person or body; and

(b) that such local laws, by‑laws or regulations have been approved of or confirmed by the Governor‑General or the Governor of the State, if they appear by such paper to have been so approved or confirmed.

[Section 78 amended by No. 14 of 1996 s. 4.]

79. Incorporation of a company, proof of

(1) All courts and persons acting judicially shall admit and receive as evidence of the incorporation of a company incorporated or registered in the United Kingdom or in any State or Territory of the Commonwealth, either before or after the commencement of this Act 1, a certificate of the incorporation or registration thereof which purports to have been signed —

(a) by the registrar or an assistant or deputy registrar of companies in England, Scotland, or Ireland, or in that State or Territory; or

(b) by a person whose authority to give the same shall be verified by a statutory declaration made before any judge or justice of the peace of such State or Territory, of whose signature such courts and persons aforesaid shall take judicial notice.

And the date of incorporation or registration mentioned in such certificate shall be evidence of the date on which the company was incorporated or registered.

(2) Any copy of or extract from any document kept and registered at the office for the registration of companies in the United Kingdom or any part thereof, or in any State or Territory of the Commonwealth or of or from a transparency (within the meaning of the Companies (Western Australia) Code 4) of a document which has been kept and registered at any such office if certified under the hand of the registrar or an assistant or deputy registrar, shall, before all courts and persons acting judicially, be admissible in evidence in all cases in which the original document is admissible in evidence and for the same purposes and to the same extent.

(3) A reference in subsection (1) or (2) to the registrar or an assistant or deputy registrar shall be construed —

(a) as including a reference to the Corporate Affairs Commission of any State or Territory of the Commonwealth or to a Commissioner of or for Corporate Affairs, an Assistant Commissioner of or for Corporate Affairs or a Deputy Commissioner of or for Corporate Affairs of any State or Territory of the Commonwealth; and

(b) as including a reference to a person holding within the office for the registration of companies in the United Kingdom or any part thereof or in any State or Territory of the Commonwealth an office which corresponds to the office of Commissioner for Corporate Affairs or Assistant Commissioner for Corporate Affairs or Deputy Commissioner for Corporate Affairs under the Companies (Administration) Act 1982 5, the Companies Act 1961 6, or any corresponding previous enactment.

[Section 79 amended by No. 10 of 1982 s. 28.]

79A. Document requiring attestation, proof of

Where a document requires attestation to be valid that document may, in any legal proceeding, be proved in the manner in which it might be proved if no attesting witness to the document were alive, but this section does not apply to the proof of a will or other testamentary document.

[Section 79A inserted by No. 12 of 1962 s. 2.]

79B. Terms used in s. 79B to 79G

In this section and in sections 79C, 79D, 79E, 79F and 79G —

business means any business, occupation, trade or calling and includes the business of any governmental body or instrumentality and of any local government;

business record means a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business;

derived means derived, by the use of a computer or otherwise, by calculation, comparison, selection, sorting, consolidation or by accounting, statistical or logical procedures;

document means any record of information and includes, in addition to a document in writing —

(a) any book, map, plan, graph or drawing;

(b) any photograph;

(c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other device) of being reproduced therefrom; and

(d) any film, negative, disc, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other device) of being reproduced therefrom;

proceedings includes arbitrations and references and court shall be construed accordingly;

qualified person, in relation to a statement, means a person who —

(a) had, at the time of making of the statement, or may reasonably be supposed to have had at that time, personal knowledge of the matters dealt with by the statement; or

(b) where the statement is not admissible in evidence unless made by an expert on the subject of the statement, was at the time of making of the statement such an expert;

statement includes any representation of fact or opinion whether made in words or otherwise.

[Section 79B inserted by No. 66 of 1987 s. 5; amended by No. 71 of 2000 s. 14.]

79C. Documentary evidence, admissibility of

(1) Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement —

(a) was made by a qualified person; or

(b) directly or indirectly reproduces or is derived from one or other or both of the following —

(i) information in one or more statements, each made by a qualified person;

(ii) information from one or more devices designed for, and used for the purpose of, recording, measuring, counting or identifying information, not being information based on a statement made by any person.

(2) Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless —

(a) he is dead;

(b) he is unfit by reason of his bodily or mental condition to attend or give evidence as a witness;

(d) all reasonable efforts to identify or find him have been made without success;

(e) no party to the proceedings who would have the right to cross‑examine him requires him to be called as a witness;

(f) having regard to the time which has elapsed since he made the statement and to all the circumstances, he cannot reasonably be expected to have any recollection of the matters dealt with in the statement;

(g) having regard to all the circumstances of the case, undue delay, inconvenience or expense would be caused by calling him as a witness; or

(h) he refuses to give evidence.

(2a) Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if —

(a) the statement is, or directly or indirectly reproduces, or is derived from, a business record; and

(b) the court is satisfied that the business record is a genuine business record.

(2b) Where a statement referred to in subsection (2a) is made by a qualified person that person shall not be called as a witness unless the court orders otherwise.

(3) This section makes a statement admissible notwithstanding —

(a) the rules against hearsay;

(b) the rules against secondary evidence of the contents of a document;

(c) that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or

(d) that the statement is in such a form that it would not be admissible if given as oral evidence,

but does not make admissible a statement which is otherwise inadmissible.

(4) Notwithstanding subsections (1), (2) and (2a), in any criminal proceedings a statement in a document which was made in the course of or for the purpose of —

(a) the investigation of facts constituting or being constituents of the alleged offence being dealt with in the proceedings;

(b) an investigation which led to the discovery of facts constituting or being constituents of the alleged offence;

(d) the preparation of the case of the prosecution in respect of any offence,

shall not be rendered admissible as evidence by this section.

(5) For the purposes of this section a court may —

(a) for the purpose of deciding whether or not a statement is admissible as evidence, draw any reasonable inference from the form of contents of the document in which the statement is contained, or from any other circumstances;

(b) in deciding whether or not a person is fit to attend or give evidence as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner.

(6) For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility —

(a) may necessitate undue consumption of time; or

(b) may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.

[Section 79C inserted by No. 66 of 1987 s. 5; amended by No. 71 of 2000 s. 15.]

79D. Evidence admitted under s. 79C, weight and effect of

(1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by section 79C regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and, in particular —

(a) to the question of whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated;

(b) to the question of whether or not the qualified person or any person concerned with making or keeping the document containing the statement, had any incentive to conceal or misrepresent the facts;

(d) to the question of whether or not the information in the statement was collected pursuant to a duty to do so;

(e) where the statement wholly or in part reproduces or is derived from information from one or more devices, to the reliability of the device or devices; and

(f) where the statement reproduces or is derived from any information, to the reliability of the means of reproduction or derivation.

(2) For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by virtue of section 79C shall not be treated as corroboration of the evidence given by the qualified person.

[Section 79D inserted by No. 66 of 1987 s. 5.]

79E. Qualified person, evidence as to credibility of

Where in any proceedings a statement is admitted as evidence under section 79C but the qualified person is not called as a witness in the proceedings —

(a) any evidence —

(i) which, if that person had been so called, would have been admissible for the purpose of destroying or supporting his credibility as a witness shall be admissible for that purpose in those proceedings; or

(ii) tending to prove that, whether before or after that person made that statement, he made another statement (whether orally or in a document or otherwise) inconsistent therewith shall be admissible for the purpose of showing that he has contradicted himself,

but nothing in subparagraph (i) or (ii) shall enable evidence to be given of any matter of which, if the person in question had been called as a witness and had denied that matter in cross‑examination, evidence could not have been adduced by the cross‑examining party; and

(b) any evidence proving that that person has been guilty of any indictable offence shall be admissible in the proceedings to the same extent as if he had been so called and on being questioned as to whether or not he had been convicted of an indictable offence had denied the fact or had not admitted the fact or had refused to answer the question.

[Section 79E inserted by No. 66 of 1987 s. 5.]

79F. Dispute as to happening of event

(1) Where in any proceedings the happening of an event is in question, and a system has been followed to make and keep a record of the happening of all events of that description, oral or other evidence to establish that there is no record of the happening of the event is admissible to prove that the event did not happen.

(2) Where evidence is, or is proposed to be, tendered under this section, a court may require that the whole or part of the record concerned be produced and, in default, may reject the evidence or, if it has been received, exclude it.

(3) In estimating the weight, if any, to be attached to evidence rendered admissible by this section, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the evidence, including whether or not any person concerned with the making or keeping of the relevant record had any incentive to omit recording the happening of the event in question.

[Section 79F inserted by No. 66 of 1987 s. 5.]

[79G. Repealed by No. 71 of 2000 s. 16.]

Proof of judicial proceedings

80. Judgments, orders etc., proof of

Evidence of any judgment, decree, rule, order, or other judicial proceeding of any court in any part of Her Majesty’s dominions, or in any foreign State, including any affidavit, pleading, or legal document filed or deposited in any such court, may be given in all courts and before all persons acting judicially by the production of a document purporting to be a copy thereof, and —

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

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

(d) purporting to be signed by a judge of such court, with a statement in writing attached by him to his signature that such court has no seal, and without proof of his judicial character or of the truth of such statement.

81. Documents properly authenticated to be given faith and credit

All public acts, records, and judicial proceedings of any State, if proved or authenticated as required by this Act, shall have such faith and credit given to them before all courts and persons acting judicially, and in every public office, as they have by law or usage in the courts and public offices of the State from whence they are taken.

Proof of telegraphic messages

82. Telegraphic messages, notice to admit may be given in civil proceedings

(1) Any party to any civil proceeding may, at any time after the commencement thereof, give notice to any other party that he proposes to adduce in evidence at the trial or hearing any telegraphic message that before the date of such notice shall have been received by electric telegraph in Western Australia:

Provided that —

(a) the time between the giving of such notice and the day on which such evidence shall be tendered shall not in any case be less than 2 days before the day of such hearing or trial; and

(b) every such notice shall specify the names of the sender and receiver of such message, and its date as nearly as may be.

(2) Any such notice may be served and the service thereof proved in the same manner as notices to admit and produce may now be served and proved respectively.

83. Telegraphic messages, proof of sending of

Whenever such notice is given, the production of any telegraphic message described in such notice, and purporting to have been sent by any person, together with evidence that the same was received from a telegraph station, shall be prima facie evidence that such message was signed and sent by the person so purporting to be the sender thereof to the person to whom the same is addressed, without any further proof of the identity of the sender:

But the party against whom such message is given in evidence shall be at liberty to prove that the same was not in fact sent by the person by whom it purports to have been sent.

84. Telegraphic messages, proof of receipt of

In any civil proceeding, the production of any telegraphic message or a copy thereof verified on oath, together with evidence that such message was taken to a telegraph station, and that the fees (if any) for the transmission thereof were paid, shall be prima facie evidence that such message was duly delivered to the person named therein as the person to whom the same was to be transmitted; and the burden of proving that such message was not in fact received shall be upon the person against whom such message is given in evidence:

Provided that notice shall be first given by the party adducing the same in evidence to the other party of his intention to do so, and such notice may be given in such manner and at such times as by the practice of the court in which the proceeding is taken, notices to produce or admit are required to be given.

85. Official documents, procedure for sending by telegraph

It shall be lawful for the Governor, any member of the Executive Council, the President of the Legislative Council, the Speaker of the Legislative Assembly, the Chief Justice, or any other Judge of the Supreme Court, any magistrate of the Magistrates Court, any officer of Government or other person whom the Governor may authorise in that behalf by warrant under his hand, or any solicitor, to cause to be transmitted by electric telegraph, the contents of any writ, warrant, rule, authority, order, affidavit, statutory declaration, or other communication requiring signature or seal, subject to the provisions following, that is to say:

(1) The original document shall be delivered at the telegraph station in the presence and under the inspection of some justice of the peace or public notary.

(2) The person to whom the contents of any such document shall be so sent shall forthwith and under the supervision of a justice of the peace or public notary cause to be sent back by electric telegraph a copy of the message received by him; and in the event of any error appearing therein the process shall be repeated under the like supervision until it shall appear that a true copy of such document has been received by the person to whom it shall have been sent.

(3) When it shall appear that such true copy has been so received, such first‑mentioned justice or notary public shall endorse upon the original document a certificate that a true copy thereof has been sent under the provisions of this Act to the person to whom the same shall have been so sent, and shall forthwith by electric telegraph inform such person that such certificate has been so endorsed, and such last‑mentioned person shall forthwith endorse on such copy a certificate that such copy was duly received by him under the provisions of this Act, and this certificate shall be countersigned by the justice of the peace or notary public under whose supervision such copy was received.

[Section 85 amended by No. 59 of 2004 s. 89.]

86. Copies so transmitted to be as valid as originals

(1) Every copy so endorsed, certified, and countersigned shall be as valid to all intents and purposes as the original whereof it purports to be a copy would have been, and shall be admissible as evidence in any case in which the original would have been so admissible.

(2) Any person by whom such copy shall have been so received or who shall be thereby authorised, instructed or commanded, or who shall or may be lawfully charged with any duty in respect thereof, shall have and become liable to the same rights or duties in respect thereof as if he had received such original document duly signed and sealed, or signed, or sealed, or sworn or declared, as the case may be.

(3) And in the case of documents intended to be served, or the efficacy or use whereof depends upon service, every such copy shall, for the purpose of such service, be deemed to be the original document whereof it purports to be a copy.

87. Original document may be inspected

Every original document a copy whereof shall have been transmitted under section 85 shall be kept at the telegraph station at which it was delivered for the purpose of such transmission, and shall, after the expiration of 2 days from the date of the certificate under subsection (3) of that section being endorsed upon it, be open within reasonable hours to the inspection of any person, upon payment of a fee of 10 cents.

[Section 87 amended by No. 113 of 1965 s. 4.]

88. Penalty for false certificates

Any justice of the peace or public notary who shall wilfully and falsely endorse upon any original document delivered at a telegraph station, for the purpose of being transmitted under the provisions of this Act, a certificate that a true copy thereof has been sent under this Act, or who shall by telegraph wilfully and falsely inform any person to whom such document shall have been so sent that a certificate under the provisions of this Act has been endorsed thereon, commits an offence.

Penalty: $200.

[Section 88 amended by No. 113 of 1965 s. 4; No. 59 of 2004 s. 89.]

Bankers’ books

89. Banker’s book entries are evidence of transactions etc.

Subject to this Act —

(a) any entry in a banker’s book shall be evidence of the matters, transactions, and accounts therein recorded; and

(b) a copy of any entry in a banker’s book shall be evidence of the entry and of the matters, transactions, and accounts therein recorded.

[Section 89 inserted by No. 66 of 1987 s. 6.]

90. Banker’s books, proof of

(1) A copy of an entry in a banker’s book shall not be received in evidence, unless it is first proved —

(a) that the book was, at the time of the making of the entry, one of the ordinary books of the bank; and

(b) that the entry was made in the usual and ordinary course of business.

(2) Such proof may be given by a partner or officer of the bank, and may be given either orally or by affidavit.

[Section 90 amended by No. 66 of 1987 s. 7.]

91. Banker’s books, copies to be certified

A copy of an entry in a banker’s book shall not be received in evidence unless it is certified to be a true copy of the entry in such manner as is approved by the court.

[Section 91 inserted by No. 66 of 1987 s. 8.]

92. Bank accounts, bank officer may give evidence about

In any legal proceedings in which it is necessary to prove —

(a) the state of an account in the books of any bank; or

(b) that any person had not an account or any funds to his credit in such books,

it shall not be necessary to produce any such book, but evidence of the state of such account, or that no such account or funds existed, may be given either orally or by affidavit by any officer or clerk of such bank who has examined such books.

[Section 92 amended by No. 10 of 1960 s. 3.]

92A. Australian and foreign banks, application to of s. 89 to 92

Sections 89, 90, 91 and 92 apply to bankers’ books, and banks and branches of banks, whether within or outside the Commonwealth.

[Section 92A inserted by No. 71 of 2000 s. 17.]

93. Bank officers not compellable in some cases

An officer of a bank shall not, in any legal proceeding to which the bank is not a party, be compellable —

(a) to produce any banker’s book, the contents of which can be proved under the provisions of this Act; or

(b) to appear as a witness to prove the matters, transactions, and accounts therein recorded,

unless by order of a Judge of the Supreme Court made for special cause.

[Section 93 amended by No. 26 of 1999 s. 78(3).]

94. Banker’s books, Supreme Court may order inspection of

(1) On the application of any party to a legal proceeding, the court or a Judge of the Supreme Court may order that such party be at liberty to inspect and take copies of any entries in a banker’s book relating to the matters in question in such proceeding.

(2) An order under this section may be made either with or without summoning the bank or any other party, and shall be served on the bank by delivering a copy of the order to an officer of such bank at a principal or a branch office thereof, having the custody of the book of which inspection is desired, 3 clear days before the same is to be obeyed, unless the court or judge otherwise directs.

(3) Sunday, Christmas Day, Good Friday, and any bank holiday shall be excluded from the computation of time under this section.

95. Costs under s. 93 and 94

(1) The costs of —

(a) any application to a court or judge under or for the purposes of sections 93 or 94; or of

(b) anything done or to be done under an order of a court or Judge made under or for the purposes of section 94,

shall be in the discretion of the court or judge, who may order the same or any part thereof to be paid to any party by the bank where the same have been occasioned by any default or delay on the part of the bank.

(2) Any such order against a bank may be enforced as if the bank was a party to the proceeding.

96. Supreme Court Judge’s powers may be exercised by other judicial officers

The powers of a Judge of the Supreme Court under this Act in regard to banker’s books may be exercised in any legal proceeding presided over by —

(a) a Judge of the District Court of Western Australia;

(b) a Judge of the Family Court of Western Australia;

(d) a person exercising the jurisdiction of the Children’s Court of Western Australia.

[Section 96 inserted by No. 59 of 2004 s. 88.]

Mode of taking evidence

97. Evidence to be on oath except in some cases

(1) Subject to any other Act in which express provision is made to the contrary, in any civil or criminal proceeding, or in any inquiry or examination in any court or before any person acting judicially, every witness other than —

(a) a witness the evidence of whom may be received pursuant to this Act though not given on oath;

(b) a witness called for the purpose only of producing a document, where there is another witness called or to be called who can identify the document;

(c) counsel giving evidence of the terms of a compromise reached between the parties to litigation in which he acted for one of those parties; and

(d) a judge, or counsel, giving evidence by way of explanation of a case in which he acted as such,

shall give evidence on oath.

(2) In any criminal proceeding, no accused person shall be entitled to make a statement of fact at his trial, otherwise than by way of admission of a fact alleged against him so as to dispense with proof of that fact, unless such statement is made by him as a witness.

(3) The form of oath for a witness is as follows —

I [insert an oath or affirmation according to the Oaths, Affidavits and Statutory Declarations Act 2005] that the evidence I will give in this case will be the truth, the whole truth and nothing but the truth.

[Section 97 inserted by No. 142 of 1976 s. 2; amended by No. 24 of 2005 s. 44.]

[98-100. Repealed by No. 24 of 2005 s. 45.]

100A. Oath may be dispensed with in some cases

(1) Where in any civil or criminal proceeding, or in an inquiry or examination in any court or before any person acting judicially the court or that person is satisfied that a person who is tendered as a witness does not understand the nature of, or the obligation imposed by, an oath or affirmation but does understand —

(a) that he is required to speak the truth and, where the witness is a compellable witness, to tell what he knows about the matter to which the testimony relates; and

(b) that he will be liable to punishment if he does not do so,

the evidence of that person may be received without an oath and without formality.

(2) In taking into account the weight and credibility that ought to be afforded to testimony given by a witness otherwise than on oath or affirmation regard shall be had to the manner and circumstances in which it is given and received and to the fact that it was given without the sanction of an oath or affirmation.

[(3) repealed]

(4) Before evidence is received pursuant to this section the court or person acting judicially shall explain or cause to be explained to the person tendered as a witness that he is required to speak the truth and, where the witness is a compellable witness, to tell what he knows about the matter in question and that he will be liable to punishment if he does not do so.

(5) A person who, in giving evidence pursuant to this section, knowingly makes a false statement material to the subject matter thereof is guilty of a crime and liable on conviction to imprisonment for a term of not more than 5 years.

(6) References in this section to —

(a) a person who is tendered as a witness;

[(b) deleted]

extend to a child who is of or over the age of 12 years and who is tendered as a witness; and the provisions of this section have effect accordingly.

(7) Except as provided in subsection (6), this section does not apply to a child, as defined in section 106A.

(8) This section does not apply to a person who is tendered as a witness and who has a mental impairment, as that term is defined by section 8 of the Criminal Law (Mentally Impaired Accused) Act 1996.

[Section 100A inserted by No. 142 of 1976 s. 4; amended by No. 36 of 1992 s. 6; No. 70 of 2004 s. 82; No. 84 of 2004 s. 80; No. 24 of 2005 s. 46; No. 2 of 2008 s. 43.]

[101. Repealed by No. 36 of 1992 s. 7.]

102. Interpreters, oaths etc. for

(1) If a person is called to act as an interpreter in any court, or before any person acting judicially, and that person, had he or she been tendered as a witness, would have been required to take an oath or make an affirmation, he or she shall be required to take an oath or affirmation as follows —

I [insert an oath or affirmation according to the Oaths, Affidavits and Statutory Declarations Act 2005] that I will well and truly translate any evidence that I am asked to translate in this case.

(2) A person who, having taken the oath or made an affirmation as an interpreter under this section, in interpreting any testimony pursuant to this section knowingly fails to translate or translates falsely any material matter is guilty of a crime and liable on conviction to imprisonment for a term of not more than 14 years.

[Section 102 inserted by No. 142 of 1976 s. 6; amended by No. 24 of 2005 s. 47.]

103. Interpreters, oath etc. may be dispensed with

(1) If any person is called to act as an interpreter in any court, or before any person acting judicially, and for any reason is not required to take an oath or make an affirmation such person may be admitted to act as interpreter, if the court or person acting judicially is satisfied as to his ability to do so competently and as to his impartiality, in the same way as if he had taken the usual oath required of a person so called where, had he been a person tendered as a witness, his evidence might have been received pursuant to this Act without an oath and without formality, and the provisions of section 100A shall apply to and in relation to any such person and to the testimony interpreted by him mutatis mutandis.

(2) Any person who, in interpreting any testimony pursuant to this section, knowingly fails to translate or translates falsely any material matter is guilty of a crime and liable on conviction to imprisonment for a term of not more that 5 years.

[Section 103 inserted by No. 142 of 1976 s. 7; amended by No. 70 of 2004 s. 82; No. 24 of 2005 s. 48.]

[104. Repealed by No. 24 of 2005 s. 49.]

104A. Person appointed by foreign court etc. may take or receive evidence and administer oath

(1) Where an authority desires to take or receive evidence in the State, the authority may by instrument in writing appoint a person to so take or so receive evidence.

(2) Subject to subsection (3), a person appointed pursuant to subsection (1) has power to take or receive evidence in the State for the authority and for that purpose has power to administer an oath.

(3) Where the authority is not a court or judge a person so appointed is not empowered to take or receive evidence or administer an oath in the State unless he has first obtained the consent in writing of the Attorney General.

(4) This section does not authorise the taking or receiving of evidence by a person so appointed in or for use in criminal proceedings.

(5) In this section authority means any court, judge, person or body that is authorised under the law of a foreign country to take or receive evidence on oath in that country.

[Section 104A inserted by No. 23 of 1967 s. 2.]

105. Oaths, Affidavits and Statutory Declarations Act 2005, application of

This Act does not limit the operation of the Oaths, Affidavits and Statutory Declarations Act 2005 and in particular Part 2 of that Act.

[Section 105 inserted by No. 24 of 2005 s. 50.]

Evidence of children and special witnesses

[Heading inserted by No. 36 of 1992 s. 8.]

[106. Repealed by No. 24 of 2005 s. 51.]

106A. Terms used in s. 106B to 106T and Schedule 7

In sections 106B to 106T and in Schedule 7, unless the contrary intention appears —

accused —

(a) in relation to an application referred to in clause 2 of Part A of Schedule 7 —

(i) means any party to the proceeding, other than the affected child and an applicant who is an officer as defined in section 3 of the Children and Community Services Act 2004;

(ii) in sections 106K(3)(a) and 106N as they apply to such an application, means any such party specified by the judge;

(b) in relation to any other Schedule 7 proceeding, a person charged with an offence;

affected child means —

(a) in relation to an application referred to in clause 2 of Part A of Schedule 7, the child in respect of whom the application is made;

(b) in relation to any other Schedule 7 proceeding, the child upon or in respect of whom it is alleged that an offence was committed, attempted or proposed;

child means —

(a) any boy or girl under the age of 18 years;

(b) in the absence of positive evidence as to age, any boy or girl apparently under the age of 18 years; and

(c) in any proceeding in the Children’s Court, any boy or girl dealt with under section 19(2) of the Children’s Court of Western Australia Act 1988;

counsel includes a solicitor;

mental impairment has the meaning given to that term by section 8 of the Criminal Law (Mentally Impaired Accused) Act 1996;

proceeding means any civil or criminal proceeding or any examination in any court or before any person acting judicially, and includes a special hearing under section 106K;

prosecutor, in relation to an application referred to in clause 2 of Part A of Schedule 7, means the applicant in that application;

Schedule 7 proceeding means a proceeding that comes within the provisions of Schedule 7;

serious sexual offence means —

(a) an offence under a section or Chapter of The Criminal Code mentioned in Part B of Schedule 7 for which the maximum penalty that may be imposed is 7 years, or more than 7 years;

(b) an offence under a repealed section of The Criminal Code if —

(i) the acts or omissions that constituted an offence under that section are substantially the same as the acts or omissions that constitute an offence (the new offence) under a section or Chapter of The Criminal Code mentioned in Part B of Schedule 7; and

(ii) the maximum penalty that may be imposed for the new offence is 7 years, or more than 7 years;

special witness means a person declared to be a special witness under section 106R(1);

visual recording means any recording on any medium from which a moving image may be produced by any means, and includes the accompanying sound track;

visual recording of evidence means a visual recording of evidence made —

[(a) deleted]

(b) in a special hearing held pursuant to an order under section 106K or 106RA; or

visually recorded interview has the meaning given to that term in section 106HA(3).

[Section 106A inserted by No. 36 of 1992 s. 8; amended by No. 53 of 1992 s. 37; No. 57 of 1997 s. 57; No. 71 of 2000 s. 18 and 29; No. 27 of 2002 s. 32; No. 34 of 2004 s. 251 (as amended by No. 84 of 2004 s. 85(4)); No. 46 of 2004 s. 14(1), (2) and 22(2); No. 84 of 2004 s. 41 and 85(4); No. 2 of 2008 s. 44.]

106B. Children under 12 may give sworn evidence

(1) A child who is under the age of 12 years may in any proceeding, if the child is competent under subsection (3), give evidence on oath or after making an affirmation.

(2) Irrespective of the person’s age, a person with a mental impairment may in any proceeding, if the person is competent under subsection (3), give evidence on oath or after making an affirmation.

(3) A person referred to in subsection (1) or (2) is competent to take an oath or make an affirmation if in the opinion of the court or person acting judicially the person understands that —

(a) the giving of evidence is a serious matter; and

(b) he or she in giving evidence has an obligation to tell the truth.

[Section 106B inserted by No. 36 of 1992 s. 8; amended by No. 46 of 2004 s. 15; No. 24 of 2005 s. 52; No. 2 of 2008 s. 45.]

106C. Child under 12 and mentally impaired witness may give unsworn evidence

A person referred to in section 106B(1) or (2) who is not competent to give evidence under section 106B(3) may give evidence without taking an oath or making an affirmation if the court or person acting judicially forms the opinion, before the evidence is given, that the person is able to give an intelligible account of events which he or she has observed or experienced.

[Section 106C inserted by No. 2 of 2008 s. 46.]

106D. Corroboration warning on evidence of child not to be given

In any proceeding on indictment for an offence in which evidence is given by a child, the judge is not to warn the jury, or suggest to the jury in any way, that it is unsafe to convict on the uncorroborated evidence of that child because children are classified by the law as unreliable witnesses.

[Section 106D inserted by No. 36 of 1992 s. 8.]

106E. Child witness entitled to support

(1) A child is entitled, while he or she is giving evidence in any proceeding in a court, to have near to him or her a person who may provide the child with support.

(2) The person referred to in subsection (1) is to be approved by the court and is not to be a person who is a witness in or a party to the proceeding.

[Section 106E inserted by No. 36 of 1992 s. 8; amended by No. 46 of 2004 s. 16.]

106F. Child witness may be given assistance

(1) Where a child is to give evidence in any proceeding in a court, the court may appoint a person that it considers suitable and competent to act as a communicator for the child.

(2) The function of a person appointed under this section is, if requested by the judge, to communicate and explain —

(a) to the child questions put to the child; and

(b) to the court, the evidence given by the child.

(3) A person appointed under this section is to take an oath or make a declaration, in such form as the court thinks fit, that he or she will faithfully perform his or her function under subsection (2).

(4) A person appointed under this section who, while performing or purportedly performing his or her function under subsection (2), wilfully makes any false or misleading statement to the child or to the court commits a crime and is liable on conviction to imprisonment for 5 years.

[Section 106F inserted by No. 36 of 1992 s. 8; amended by No. 4 of 2004 s. 58; No. 46 of 2004 s. 17; No. 2 of 2008 s. 47.]

106G. Cross‑examination of protected witness by unrepresented accused

(1) Where in any proceeding for an offence an accused who is not represented by counsel wishes to cross‑examine a protected witness, the accused —

(a) is not entitled to do so directly; but

(b) may put any question to the protected witness by stating the question to the judge or a person approved by the court,

and that person is to repeat the question accurately to the protected witness.

(2) Nothing in subsection (1) prevents a protected witness who is not a child from consenting to being cross‑examined by the accused directly.

(3) In this section —

protected witness means —

(a) a child; or

(b) if the proceeding is for a serious sexual offence, the person upon or in respect of whom it is alleged that the offence was committed, attempted or proposed irrespective of the person’s age.

[Section 106G inserted by No. 36 of 1992 s. 8; amended by No. 46 of 2004 s. 18; No. 84 of 2004 s. 82.]

106H. Child’s statement to another admissible in Sch. 7 proceedings

(1) In any Schedule 7 proceeding, a relevant statement may, at the discretion of the judge, be admitted in evidence if —

(a) there has been given to the accused —

(i) a copy of the statement; or

(ii) if the statement is not recorded in writing or electronically, details of the statement;

and

(b) the accused is given the opportunity to cross‑examine the affected child.

(2) If a relevant statement is to be admitted, evidence of the making and content of the affected child’s statement shall be given by the person to whom the affected child made the statement.

(2a) Subsection (1) does not affect the operation of section 106G.

(2b) If a person to whom an affected child made a relevant statement makes a written statement in accordance with Schedule 3 clause 4(1) of the Criminal Procedure Act 2004, the written statement is admissible.

(2c) A relevant statement recorded on a visual recording is admissible to the same extent as if it were given orally in the proceeding in accordance with the usual rules and practice of the court concerned.

(3) In this section relevant statement means a statement that —

(a) relates to any matter in issue in the proceeding; and

(b) was made by the affected child to another person before the proceeding was commenced,

whether the statement is recorded in writing or electronically or not, but does not include a visually recorded interview.

[Section 106H inserted by No. 36 of 1992 s. 8; amended by No. 71 of 2000 s. 19; No. 46 of 2004 s. 14(3) and 19; No. 59 of 2004 s. 89; No. 84 of 2004 s. 37 and 82.]

106HA. Visual recording of interviews with children

(1) Section 106HB applies to a visual recording of an interview with a child conducted before or after the coming into operation of section 20 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 if —

(a) the interview was conducted by a person of a prescribed class who had reason to believe that the child, or another child, had, or may have, suffered physical or sexual abuse; and

(b) the manner in which the interview was conducted and recorded meets the prescribed requirements to the prescribed extent.

(1a) Section 106HB applies to a visual recording of an interview with a person with a mental impairment conducted before or after the coming into operation of section 48 of the Criminal Law and Evidence Amendment Act 2008 if —

(a) the interview was conducted by a person of a prescribed class who had reason to believe that the person had, or may have, suffered physical or sexual abuse; and

(b) the manner in which the interview was conducted and recorded meets the prescribed requirements to the prescribed extent.

(2) Section 106HB applies to a visual recording of an interview with a person with a mental impairment, or a child, whether or not the interview was conducted with the consent of a parent or guardian of the person or child.

(3) A visual recording of an interview with a child, or a person with a mental impairment, to which section 106HB applies is referred to as a visually recorded interview.

[Section 106HA inserted by No. 46 of 2004 s. 20; amended by No. 2 of 2008 s. 48.]

106HB. Admissibility in criminal proceedings of a visual recording of an interview with a child

(1) In any proceeding for an offence (the proceeding) one or more visually recorded interviews may be admitted as the whole or a part of the evidence in chief of a witness —

(a) irrespective of the age or maturity of the witness at the time of the proceeding; and

(b) even if the witness is capable of giving evidence at the proceeding.

(1a) A visually recorded interview with a person with a mental impairment is not to be admitted in the proceeding under subsection (1) unless the person is a special witness.

(2) A visually recorded interview is not to be admitted in the proceeding under subsection (1) unless —

(a) a transcript of it has been given to the accused; and

(b) the accused and his or her counsel have, in accordance with the regulations, been given a reasonable opportunity to view the visually recorded interview.

(3) Neither the accused nor his or her counsel is entitled to have possession of, or of a copy of —

(a) a visually recorded interview; or

(b) a visual recording of evidence on which a visually recorded interview is recorded or which incorporates a visually recorded interview.

(4) A visually recorded interview is admissible under subsection (1) to the same extent as if statements made in it by the witness were given orally in the proceeding in accordance with the usual rules and practice of the court concerned.

(5) If a visually recorded interview is admissible under subsection (1), the judge in the proceeding may give any directions the judge thinks fit as to —

(a) the presentation of it and the excision of matters from it; and

(b) the manner in which further evidence in chief of the witness may be given and in which any cross‑examination and any re‑examination of the witness is to be conducted in the proceeding.

(6) A visually recorded interview is not to be admitted under subsection (1) if it has been edited or altered otherwise than in accordance with a direction under subsection (5)(a).

(6a) If a visually recorded interview of a witness is admitted under subsection (1), then, while the recording is played to the court, the witness must not be present in court, or be visible or audible by closed‑circuit television or by means of any similar technology to anyone in the court other than, in the case of a trial by jury, the judge.

(7) The following provisions apply if the proceeding is on indictment —

(a) if a visually recorded interview is admitted under subsection (1), the judge is to instruct the jury that the procedure is a routine practice of the court and that they should not draw any inference as to the accused’s guilt from the use of the procedure;

(b) if the judge is deciding whether or not to warn the jury that it may be dangerous to convict on the evidence of the complainant alone because of the length of the period between the offence and the proceeding, the admission under subsection (1) of a visually recorded interview with the complainant is not a relevant factor except to the extent that the length of the period between the offence and the admission of the official visually recorded interview may have affected the ability to test the evidence so admitted;

(c) the fact that there was a visually recorded interview that the prosecutor did not adduce under subsection (1) is not to be the subject of comment to the jury by the judge, the accused or the accused’s counsel.

(8) Subsection (7)(c) does not prevent a judge from directing a jury about a breach of subsection (7)(c) by the accused or the accused’s counsel, if it is in the interests of justice to do so.

[Section 106HB inserted by No. 46 of 2004 s. 20; amended by No. 84 of 2004 s. 82; No. 2 of 2008 s. 49.]

106HC. Regulations about visual recording of interviews with children

(1) The Governor may make regulations —

(a) prescribing classes of persons for the purposes of section 106HA(1)(a) by reference to the offices or positions held by them, or their training or experience, or any combination of those criteria; and

(b) prescribing requirements to be met for the purposes of section 106HA(1)(b), and the extent to which they are to be met, if section 106HB is to apply to a visual recording of an interview with a child; and

(ba) prescribing classes of persons for the purposes of section 106HA(1a)(a) by reference to the offices or positions held by them, or their training or experience, or any combination of those criteria; and

(bb) prescribing requirements to be met for the purposes of section 106HA(1a)(b), and the extent to which they are to be met, if section 106HB is to apply to a visual recording of an interview with a person with a mental impairment; and

(c) prescribing the manner in which the application of section 106HB to a visual recording of an interview with a child, or a person with a mental impairment, may be proved in proceedings; and

(d) regulating the playing, broadcasting, custody, possession, storage, copying, transcription, erasure or destruction of a visually recorded interview; and

(e) regulating the records that are to be kept about a visually recorded interview; and

(f) providing for access to a visually recorded interview by the prosecutor for the purposes of proceedings referred to in section 106HB; and

(g) providing for access to and use of a visually recorded interview for the purposes of proceedings in the Children’s Court or the Family Court whether or not it has been admitted in evidence under section 106HB; and

(h) providing for access to and use of a visually recorded interview otherwise than for the purposes of proceedings referred to in section 106HB or paragraph (g); and

(i) prescribing any other matter that is necessary or convenient to be prescribed for the purposes of section 106HA or 106HB.

(2) The regulations may create offences and provide, in respect of an offence so created, for the imposition of a penalty not exceeding a fine of $100 000 with or without imprisonment for a term not exceeding 12 months.

[Section 106HC inserted by No. 46 of 2004 s. 20; amended by No. 2 of 2008 s. 50.]

106HD. Admissibility of visually recorded interviews generally

Section 106HB and regulations under section 106HC have effect in addition to, and do not limit the operation of, any other enactment or rule of law under which a visually recorded interview may be admissible in proceedings.

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