The Evidence Act R:E 2022

This Act may be cited as the Evidence Act.

This Act applies to judicial proceedings in all courts other than primary courts where evidence is or may be given, but it does not apply to affidavits or arbitration proceedings.

This section defines key terms used in the Act, including confession, court, document, evidence, fact, oral evidence, police officer, relevant, and when a fact is treated as proved.

When the Act or another written law allows the court to presume a fact, the court may treat it as proved unless disproved, or ask for proof.

If a written law says the court must presume a fact, the court must treat that fact as proved unless it is disproved.

If a fact is declared conclusive proof of another fact, the court must treat the other fact as proved and must not allow evidence to disprove it.

In a suit or proceeding, evidence may be given about facts in issue and other relevant facts, subject to any other law.

The court must take judicial notice of listed facts, may use reference books or documents, and may require a person to produce needed material before doing so. In civil proceedings, admitted facts generally do not need to be proved, but the court can still require proof.

A person who asks a court to decide a legal right or liability based on asserted facts must prove those facts.

In a suit proceeding, the burden of proof falls on the person who would lose if no evidence were given by either side.

A person who wants the court to believe a particular fact must prove it, unless another law places that burden on someone else.

A person who wants to give evidence must prove any fact needed to allow that evidence to be given.

An accused person must prove any exception, exemption, qualification, or fact especially within their knowledge, and still has to prove intoxication or insanity defences.

In civil proceedings, a person who especially knows a fact must prove it.

If a person was alive within the last 30 years, the person claiming he is dead must prove it.

If a missing person has not been heard from for five years by people who would naturally have heard from him, the person who says he is alive must prove it.

Sections 116 and 117 do not apply to proceedings under the Law of Marriage Act.

If a dispute is about whether people are partners, landlord and tenant, or principal and agent, and they have been acting that way, the person who says the relationship does not exist or has ended must prove it.

If someone is in possession of something and ownership is questioned, the person claiming they are not the owner must prove that.

If there is a question about whether a transaction was made in good faith, the party in the position of active confidence must prove that good faith.

A child born during a valid marriage, or within 280 days after it ends while the mother remains unmarried, is presumed to be the man’s legitimate son or daughter, and a court may presume certain facts.

A court may infer that a fact exists if it thinks the fact likely happened.

Most people are competent to testify, but the court can exclude someone who cannot understand or answer questions rationally because of age, disease, or a similar cause. A child of tender age may testify without oath or affirmation, but must promise to tell the truth. In sexual-offence criminal cases, the court must receive certain child or victim evidence and may convict on it if satisfied it is truthful.

Facts connected to a fact in issue as part of the same transaction are relevant, including facts that are the occasion, cause, or effect of facts in issue.

The section says certain facts are relevant if they are the occasion, cause, effect, or surrounding circumstance of relevant facts or facts in issue, and includes motive, preparation, and previous or subsequent conduct.

This section says facts are relevant if they show motive or preparation, and conduct can be relevant when it affects a fact in issue or related fact.

Facts are relevant if they are necessary to explain or introduce another fact, support or rebut an inference, identify a person or thing, fix the time or place of a fact, or show the relation of the parties.

If two or more people are reasonably believed to have conspired, statements or acts by one of them in furtherance of the common intention can be used as evidence against all of them.

Facts are relevant if they are inconsistent with a fact in issue or relevant fact, or if they make such a fact highly probable or improbable.

In damage suits, facts that help the court decide the amount of damages are relevant.

When the existence of a right or custom is disputed, certain transactions and prior instances about it are relevant facts.

Facts about a person’s state of mind or bodily condition are relevant when that state is in issue, and a prior conviction may also be relevant in a trial where a prior offence by the accused matters.

When it is unclear whether an act was accidental or intentional, evidence that it was part of a series of similar occurrences may be relevant.

If it is in question whether an act was done, evidence of the normal course of business is a relevant fact.

This section defines an admission as a statement, oral, electronic, or documentary, that suggests an inference about a fact in issue or a relevant fact.

This section defines when certain statements count as admissions, including statements by parties, authorised agents, representative parties, and people with a proprietary or pecuniary interest.

Statements can count as admissions when they are made by a person whose position or liability must be proved, are relevant against that person, and are made while the person still holds that position or liability.

Statements made by certain referred persons about a disputed matter are treated as admissions.

Admissions can be used against the person who made them, but that person or their representative generally cannot use them themselves, except in listed cases.

Oral admissions about a document’s contents are not relevant unless the party proves they are entitled to use secondary evidence, or the document’s genuineness is disputed.

In civil cases, an admission is not relevant if it was made on an express condition that it would not be used as evidence, or if the court can infer the parties agreed it would not be given in evidence.

Admissions are not final proof of the facts admitted, but they may still work as estoppel under this Act.

Oral evidence must be direct, and facts may be proved by oral evidence except the contents of documents.

Oral evidence must be direct, and a court may require production of a material thing for inspection in some cases.

This section stops certain people from denying facts they previously caused others to rely on, and also restricts tenants, licensees, and bill acceptors from denying specified title or authority facts.

A bailee or licensee cannot deny the bailor’s or licensor’s authority at the start of the bailment or licence, with one stated exception.

A voluntary confession made to a police officer may be used against the accused, the prosecution must prove it was voluntary, and a confession is involuntary if the court finds it was induced by threats, promises, or other prejudice from certain authorities.

A confession freely and voluntarily made before a magistrate or justice of the peace may be used in evidence against the accused person. A confession is not to be rejected just because of a promise or threat unless the court thinks the inducement was likely to cause an untrue admission of guilt.

A confession may be treated as relevant and not rejected if an inducement was made under section 29 conditions and the court thinks the inducement’s effect has fully worn off before the confession.

Information from an accused person in police custody can be used to the extent it directly relates to a fact discovered from that information.

A confession that is otherwise relevant is not made irrelevant just because it was made in secrecy, under deception, while the accused was drunk, in response to questions the accused need not have answered, or without a warning that the accused was not bound to confess.

A co-accused’s confession may be used against another person in a joint trial, but a conviction cannot rest only on that confession.

The contents of documents may be proved by primary evidence or secondary evidence.

The section defines when a document or its parts count as primary evidence.

Electronic evidence is admissible in proceedings.

This section lists what counts as secondary evidence of a document.

Documents must be proved by primary evidence unless this Act provides otherwise.

Secondary evidence may be used for a document only in listed situations, such as when the original cannot be produced, is lost or destroyed, is hard to move, is a public document, or a certified copy is allowed.

A party may not give secondary evidence of certain documents unless they first give notice to produce, subject to listed exceptions.

If a document is said to be signed or written by someone, the signature or handwriting must be proved to be that person’s handwriting.

An attested document cannot be used as evidence until one attesting witness is called to prove its execution, if such a witness is alive and able to give evidence, subject to the court’s process.

If no attesting witness is available, not subject to the court, or unable to give evidence, the attestation and the executant’s signature must be proved by handwriting evidence; admission of execution by the party to the attested document is also mentioned.

An admission by a party that it executed an attested document is enough proof of execution against that party, even if the document was one required by law to be attested.

If an attesting witness denies or cannot remember a document’s execution, it may be proved by other evidence.

An attested document that is not legally required to be attested may be proved as if it were unattested.

The court may compare disputed signatures, writings, seals, words, figures, and finger impressions with admitted or proved examples.

A person summoned to produce a document does not become a witness just by producing it, and cannot be cross-examined unless and until called as a witness.

Witnesses to character may be cross-examined.

A leading question is one that suggests the answer the questioner wants or expects.

Leading questions are generally not allowed in examination-in-chief or re-examination if the adverse party objects, unless the court permits them.

Leading questions may be asked during cross-examination.

A witness being examined may be asked whether the matter was in a document, and the adverse party may object to the evidence until the document is produced or secondary-evidence facts are proved.

A witness may be questioned about previous written statements relevant to the matter, and if the writing will be used to contradict the witness, attention must first be drawn to the relevant parts.

A witness under cross-examination may be asked questions to test veracity, identify the witness, or shake credibility, even if the answers could incriminate the witness or expose the witness to a penalty or forfeiture.

If a question asked under section 155 is relevant to the suit or proceeding, section 141 applies.

A defendant who testifies for the defence can be cross-examined on any question, even if the answer may incriminate them.

The court decides whether a witness must answer certain irrelevant questions, may warn the witness they need not answer, and may draw an adverse inference from refusal. A person asking such a question must have reasonable grounds to think the imputation is well founded.

The court may stop questions or inquiries it considers indecent or scandalous, except where they relate to facts in issue or to matters needed to decide those facts.

The court must forbid questions meant to insult or annoy, or questions that are unnecessarily offensive in form.

A witness generally cannot be contradicted with evidence on questions that only test credit, but false answers may later lead to a charge of giving false evidence.

The court may allow the party who called a witness to ask questions that would otherwise be asked in cross-examination.

This section allows a witness’s credibility to be attacked in specified ways, and limits what a witness may say in chief when asked about another witness’s credibility.

A witness may be questioned about other circumstances they observed near the time or place of the relevant fact if the court thinks those circumstances would corroborate the witness’s testimony.

A witness’s earlier written or spoken statement may be used to support that witness’s testimony if it relates to the same fact and was made at about the same time as the fact happened, or before a legally competent authority.

When a relevant statement has been proved, other matters may also be proved to contradict or support it, or to attack or confirm the maker’s credibility.

Certain statements of relevant facts may be admitted in evidence if the maker is unavailable or if the statement falls within one of the listed cases.

In criminal proceedings, certain written statements can be admitted as evidence if they were made as a memorandum or record of an act, transaction, occurrence, or event, or as a trade or business record made in the regular course of business.

This provision defines key terms used in the Part, including “bank” or “banker,” “banker’s books,” “court,” and “legal proceedings.”

A witness under examination may refresh memory by referring to certain writings.

A witness may use a copy of a writing to refresh memory if the court allows it and is satisfied there is a good reason why the original is not produced.

An expert may refresh his memory by referring to professional treatises.

A witness may testify to facts mentioned in certain documents even without remembering the facts personally, if the witness is sure the document recorded them correctly.

A writing referred to in section 168 or 169 must be produced and shown to the adverse party if that party requires it.

A witness summoned to produce a document must bring it to court if it is in the witness’s possession or power, even if someone objects; the court may inspect the document or use other evidence, and a translator may be ordered to keep translated contents secret unless the document will be given in evidence.

If a document was requested after notice to produce and has been produced and inspected, the other party must give it as evidence if the producing party requires it.

A party who was notified to produce a document may not later use it as evidence if they refused to produce it, unless the other party consents or the court orders otherwise.

The court may question witnesses or parties and order documents or things to be produced, but the parties and their agents cannot object or cross-examine without the court’s leave.

Written or electronic statements can be used as evidence in criminal proceedings if the section’s conditions are met.

In civil proceedings, a written statement in a document can be admitted as evidence instead of the witness attending if the stated conditions are met.

Witness evidence from earlier judicial proceedings can be used to prove facts in later proceedings, or later stages of the same case, if the listed conditions are met.

Business account entries kept regularly are relevant when they relate to a matter the court must examine, but they are not by themselves enough to prove liability.

An entry in an official book, register, or record can count as a relevant fact if it states a fact in issue or another relevant fact and was made by an authorized public servant or by a person carrying out a duty required by the law of the country where the record is kept.

Facts shown in certain published maps, charts, maps, or plans are treated as relevant facts.

A statement of a public fact in certain official texts is treated as a relevant fact when a court must decide whether that fact exists.

In deciding an opinion about another country’s law, a court may treat certain books and court reports as relevant evidence.

Evidence obtained through undercover operations is admissible in criminal proceedings.

This section says which documents count as public documents, including certain acts and records of the President, official bodies and tribunals, public officers, and legislative acts.

Documents that are not public documents are private.

Public officers with custody of inspectable public documents must give a copy on demand when legal fees are paid, and the copy must include a certificate of truth.

Certified copies of public documents may be used as proof of the contents of the documents, or the parts they copy.

This section says certain public documents may be proved in specified ways, depending on the type of document and where it comes from.

Assessors may ask proper questions to a witness in cases tried with assessors, through the court or with the court’s leave.

The court may require only the part of a statement or document needed to understand it fully.

A court must presume certain documents to be genuine if they meet stated conditions, and must also presume that the signing or certifying officer held the official position claimed.

Courts must presume certain evidence documents are genuine and that stated facts about how the evidence was taken are true when the document meets the listed conditions.

A court must presume certain documents are genuine if they are kept in the form required by law and come from proper custody.

A court must presume government-made maps or plans are authentic and accurate, unless they are maps or plans made for legal proceedings, in which case accuracy must be proved.

A court must presume that certain books are genuine if they appear to be official law books or reports of court decisions from another country.

A court must presume certain foreign-executed private documents were properly executed and authenticated if the listed authentication conditions are met.

A court must presume a qualifying power of attorney document was properly executed and authenticated.

A court may presume a foreign judicial record copy is genuine and accurate if its certification matches a manner certified as commonly used in that country by a Commonwealth foreign service officer or diplomatic representative.

A court may presume authorship and publication details for certain books, maps, or charts when the conditions in this section are met.

A court may presume a forwarded message matches the message sent, but not who delivered it for transmission.

The court must presume certain unproduced documents were properly attested, stamped, and executed if they were called for after notice to produce.

The court may presume a recent document is genuine and duly executed if it comes from proper custody.

A judgment, order, or decree that legally prevents a court from hearing a suit or holding a trial is a relevant fact for deciding whether the court should hear the suit or hold the trial.

Certain final court judgements, orders, or decrees are relevant in later proceedings when a person’s legal character or title to specific property or things is in issue, and they are conclusive proof of the matters stated in subsection (2).

A final criminal judgment becomes conclusive evidence of guilt or innocence once the appeal time limit has expired or the appeal decision has been made, whichever is later.

Judgements, orders, or decrees covered by this section are relevant only if they concern matters of public nature relevant to the inquiry, and they are not conclusive proof of what they state.

Judgements, orders, and decrees outside sections 42 to 44 are generally irrelevant unless their existence is directly in issue or another Act provision makes them relevant.

A party to a suit or other proceedings may show that a relevant judgment, order, or decree was issued by an incompetent court or was obtained by fraud or collusion.

If a contract, grant, or other property disposition is put into writing, the document itself—or admissible secondary evidence of it—must be used to prove its terms; some written appointments and probated wills are treated specially.

If a contract or similar document has been proved under section 100, oral evidence cannot be used to change its terms, except for the listed exceptions.

If a document’s language is plainly ambiguous or defective, evidence cannot be used to show its meaning or fix its defects.

If a document’s wording is plain and fits the existing facts, evidence cannot be used to argue it was meant to mean something else.

If a document’s words are clear but do not fit the facts, evidence may be used to show the words were meant in a special sense.

Evidence may be given to show which person or thing a disputed phrase was intended to apply to.

Evidence may be given to show which of two possible sets of facts a document’s language was meant to apply to.

Evidence may be given about the meaning of unclear, uncommon, abbreviated, technical, obsolete, local, or otherwise peculiar words and characters.

People who are not parties to a document, or their representatives in interest, may give evidence about facts showing a contemporaneous agreement that changes the document’s terms.

This section says this Part does not affect any other written law about how wills or other testamentary dispositions are construed.

Opinions from experts on foreign law, science or art, or on identity of handwriting, finger or other impressions, are relevant facts when a court must form an opinion on those points.

Facts are relevant if they support or conflict with relevant expert opinions, including opinions about handwriting.

A court may treat an opinion from someone familiar with a person's handwriting as relevant evidence about who wrote or signed a document.

When a court is deciding whether a general custom or right exists, opinions from people likely to know about it are relevant.

A court may treat opinions from people with special knowledge as relevant when deciding on customs, religious or charitable foundations, or the meaning of words used in particular districts or by particular groups.

A court may treat a knowledgeable person's conduct-based opinion about a relationship as relevant evidence, but not as enough to prove a marriage under the Law of Marriage Act.

If a living person's opinion is relevant, the grounds for that opinion are also relevant.

In civil cases, character evidence is generally irrelevant, except where it comes from otherwise relevant facts; character may also be relevant to the amount of damages a person should receive.

In criminal proceedings, evidence that the accused has a good character is relevant.

This section limits when a person’s bad character or other convictions can be raised in criminal proceedings, and restricts questioning a charged witness about other offences unless an exception applies.

“Character” includes reputation and disposition. In this section, evidence is limited to general reputation and general disposition, except where sections 54 or 56 provide otherwise.

A copy of an entry in a banker’s book must be accepted in legal proceedings as prima facie evidence of the entry and the matters recorded in it, subject to this Act.

A copy of a banker’s book entry cannot be received in evidence unless the required proof is first made.

A printout of a bank record can be received in evidence if it is accurately produced, supported by the required proof under section 78(2), and the book is in the bank’s custody. Banker’s books are also treated as primary evidence and as documents for section 64(1).

A copy of an entry in a banker’s book cannot be used as evidence unless it is separately proved to be checked against the original and found correct.

A banker or bank officer generally cannot be forced to produce certain bank books or testify about their contents in proceedings where the bank is not a party, unless a court orders it for special cause.

A court may let a party to proceedings inspect and copy entries in a banker’s book if the party applies.

The court decides who pays certain court costs under this Part, and may order the bank to pay all or part of them if the costs were caused by the bank’s default or delay.

A witness who cannot speak may still give evidence by another intelligible method, such as writing or signs, and the writing or signs must be made in open court.

This section sets when a spouse can testify for the prosecution or defence in an offence case, and limits when a spouse may be called or when the evidence is admissible.

In civil proceedings, the parties and their spouses can be called as witnesses.

A Minister may state on oath that an unpublished official record should not be produced because it would harm the public interest; if so, the document or a copy is not admissible.

Judges, magistrates, police officers, and revenue officers cannot be forced to reveal the source of information about offences.

An advocate generally must not disclose client communications, related documents, or advice without the client’s express consent.

Section 134 applies to interpreters and to the clerks or servants of advocates.

A party who gives evidence is not treated as having consented to the disclosure in section 134. If a party calls the advocate as a witness, consent is only deemed if the party asks about matters the advocate could not otherwise disclose.

A person generally cannot be forced to disclose confidential communications with a legal adviser to a court.

A witness who is not a party to a suit generally cannot be forced to produce title-deeds or related documents about property held as pledgee or mortgagee, unless there is a written agreement to do so.

A witness who is not a party to a suit cannot be forced to produce a document if producing it might incriminate them, unless they have agreed in writing.

A person cannot be forced to produce documents in their possession if someone else could refuse to produce them, unless that other person consents.

A witness must answer relevant questions in a suit or civil or criminal proceeding, even if the answer could incriminate them or expose them to a penalty, forfeiture, or debt claim.

In prosecutions for receiving stolen or unlawfully obtained property, certain evidence of guilty knowledge may be used, but prior-conviction evidence has notice and possession requirements.

An accomplice may testify as a witness against an accused person, and a conviction is not invalid just because the accomplice’s testimony is uncorroborated.

No particular number of witnesses is required to prove a fact, subject to any other written law.

The order for producing and examining witnesses is governed by the relevant civil or criminal procedure rules, and if there is no such law, the court decides.

The court decides whether evidence is admissible based on relevance, and it can ask why proposed evidence would be relevant.

This section defines examination-in-chief, cross-examination, and re-examination of a witness.

Witnesses are examined in a set order: examination-in-chief first, then cross-examination if requested by the adverse party, then re-examination if requested by the party calling the witness.

Improper admission or rejection of evidence, by itself, is not enough to justify a new trial or reversal.

This section says the Act does not override other written laws about evidence, unless the Act expressly says otherwise.

Section title: repeal and saving of laws.