Section 12 of the Evidence Act 1995 governs competence and compellability. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Start here in every witness problem. Except as otherwise provided by this Act— (a) every person is competent to give evidence, and (b) a person who is competent to give evidence about a fact is compellable to give that evidence.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where except as otherwise provided by this Act every person is competent to give evidence, and a person who is competent to give evidence about a fact is compellable to give that evidence. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation.
The application of section 12 is illustrated in A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 at [868]. The Court held that first, s 12(a) provides that unless otherwise provided by the Act, every person is competent to give evidence; and s 13(6) establishes a presumption that a person is not incompetent because of s 13, unless the contrary is proved.
A further example is Tikomaimaleya v The Queen [2017] NSWCCA 214 at [14], where the Court applied section 12 in context. The Court held that (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person: (a) that it is important to tell the truth, and (b) that he or she may be asked questions that he or. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 12.
Practical takeaway:
Start here in every witness problem
Only move to section 13 if capacity is challenged
A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 at [868]
Guiding proposition:
The Court held that first, s 12(a) provides that unless otherwise provided by the Act, every person is competent to give evidence; and s 13(6) establishes a presumption that a person is not incompetent because of s 13, unless the contrary is proved.
Tikomaimaleya v The Queen [2017] NSWCCA 214 at [14]
Guiding proposition:
The Court held that (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person: (a) that it is important to tell the truth, and (b) that he or she may be asked questions that he or.
Section 13 of the Evidence Act 1995 governs competence: lack of capacity. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. If capacity is challenged, apply the section 13 tests before sworn evidence.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where a person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability) the person does not have the capacity to understand a question about the fact or the person does not have the capacity to give an answer that can be understood to a question about the fact. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that incapacity cannot be overcome.
The application of section 13 is illustrated in SC v The King [2026] NSWCCA 54 at [126]. The Court held that his appeal was upheld on the ground that s 13(5) of the Evidence Act had not been complied with and, consequently, the proceedings had miscarried.
A further example is SC v The King [2026] NSWCCA 54 at [128], where the Court applied section 13 in context. The Court held that gC was ruled not competent to give sworn or affirmed evidence, and on this occasion the words contained in s 13(5) were read out to her. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 13.
Practical takeaway:
If capacity is challenged, apply the section 13 tests before sworn evidence
A witness without understanding of truth may give unsworn but not sworn evidence
Strict compliance with truth-direction procedures is required for unsworn child evidence
SC v The King [2026] NSWCCA 54 at [126]
Guiding proposition:
The Court held that his appeal was upheld on the ground that s 13(5) of the Evidence Act had not been complied with and, consequently, the proceedings had miscarried.
Guiding proposition:
The Court held that gC was ruled not competent to give sworn or affirmed evidence, and on this occasion the words contained in s 13(5) were read out to her.
section 14 — Compellability of Reduced Capacity Witnesses
Section 14 of the Evidence Act 1995 governs compellability: reduced capacity. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 14 applies where a witness lacks full capacity.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where a person is not compellable to give evidence on a particular matter if the court is satisfied that substantial cost or delay would be incurred in ensuring that the person would have the capacity to understand a question about the matter or to give an answer that can be understood to a question about the matter. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation.
The application of section 14 is illustrated in BODILLY & HAND [2019] FamCA 210 at [166]. The Court held that senior counsel for the wife did not submit that s 14 of the Evidence Act did not apply.
A further example is BODILLY & HAND [2019] FamCA 210 at [164], where the Court applied section 14 in context. The Court held that as to the compellability and availability of the wife, Mr Matta relied upon s 14 of the Evidence Act on the basis that the husband did not concede (and could not properly test) Part N of the wife’s financial circumstances as to her reasonable daily expenses. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 14.
Practical takeaway:
Section 14 applies where a witness lacks full capacity
Balance the need for the witness against delay, cost, and alternative evidence
BODILLY & HAND [2019] FamCA 210 at [166]
Guiding proposition:
The Court held that senior counsel for the wife did not submit that s 14 of the Evidence Act did not apply.
Guiding proposition:
The Court held that as to the compellability and availability of the wife, Mr Matta relied upon s 14 of the Evidence Act on the basis that the husband did not concede (and could not properly test) Part N of the wife’s financial circumstances as to her reasonable daily expenses.
Section 15 of the Evidence Act 1995 governs compellability: sovereign and others. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Identify whether the witness holds an office protected by section 15.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where none of the following is compellable to give evidence the Sovereign, the Governor-General, the Governor of a State, the Administrator of a Territory, or a foreign sovereign or the Head of State of a foreign country. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that a member of a House of an Australian Parliament is not compellable to give evidence if the member would, if compelled to give evidence, be prevented from attending a sitting of that House, a joint sitting of that Parliament, or a meeting of a committee of which he or she is a member.
The application of section 15 is illustrated in Larter v Hazzard [2021] NSWSC 1411 at [26]. The Court held that although it does not apply in terms, s 15(2)(b) of the Evidence Act 1995 (which provides that a member of a House of an Australian Parliament is not compellable to give evidence if the member would, if compelled to give evidence, be prevented from.
A further example is Radio 2UE Sydney Pty Ltd v Burns (EOD) [2005] NSWADTAP 69 at [20], where the Court applied section 15 in context. The Court held that another recent case that has touched on the issue of whether the Division is a ‘court’ within the meaning of a statute is O'Sullivan v Central Sydney Area Health Service (No 2) [2005] NSWADT 136 (appeal pending). Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 15.
Practical takeaway:
Identify whether the witness holds an office protected by section 15
The protection preserves official and parliamentary processes
Larter v Hazzard [2021] NSWSC 1411 at [26]
Guiding proposition:
The Court held that although it does not apply in terms, s 15(2)(b) of the Evidence Act 1995 (which provides that a member of a House of an Australian Parliament is not compellable to give evidence if the member would, if compelled to give evidence, be prevented from.
Radio 2UE Sydney Pty Ltd v Burns (EOD) [2005] NSWADTAP 69 at [20]
Guiding proposition:
The Court held that another recent case that has touched on the issue of whether the Division is a ‘court’ within the meaning of a statute is O'Sullivan v Central Sydney Area Health Service (No 2) [2005] NSWADT 136 (appeal pending).
Section 16 of the Evidence Act 1995 governs competence and compellability: judges and jurors. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. A presiding judge cannot testify about the trial they conducted.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where a person who is a judge or juror in a proceeding is not competent to give evidence in that proceeding. However, a juror is competent to give evidence in the proceeding about matters affecting conduct of the proceeding. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that a person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave.
The application of section 16 is illustrated in CUR24 v Director of Public Prosecutions [2012] NSWCA 65 at [45]. The Court held that a judge would be competent to give evidence in such a proceeding but not compellable without leave: Evidence Act 1995, s 16(2).
A further example is Ryan v Watkins [2005] NSWCA 426 at [50], where the Court applied section 16 in context. The Court held that as such: (a) the medical assessor cannot, without leave of the court, be compelled to give evidence (subs 16(2)), (b) evidence of the medical assessor’s deliberations cannot be given by the assessor, a person under the control of the assessor, or by reference. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 16.
Practical takeaway:
A presiding judge cannot testify about the trial they conducted
Leave is required before compelling a judicial officer in another proceeding
CUR24 v Director of Public Prosecutions [2012] NSWCA 65 at [45]
Guiding proposition:
The Court held that a judge would be competent to give evidence in such a proceeding but not compellable without leave: Evidence Act 1995, s 16(2).
Guiding proposition:
The Court held that as such: (a) the medical assessor cannot, without leave of the court, be compelled to give evidence (subs 16(2)), (b) evidence of the medical assessor’s deliberations cannot be given by the assessor, a person under the control of the assessor, or by reference.
section 17 — Compellability of Accused and Associated Accused
Section 17 of the Evidence Act 1995 governs competence and compellability: defendants in criminal proceedings. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 17 applies only in criminal proceedings. An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where this section applies only in a criminal proceeding. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that a defendant is not competent to give evidence as a witness for the prosecution.
The application of section 17 is illustrated in Stanley v DPP (NSW) [2023] HCA 3 at [163]. The Court held that in Kirk v Industrial Court (NSW)[138], the misconceptions involved the core of the offence-creating provision, s 15 of the Occupational Health and Safety Act 1983, and a departure from the applicable rules of evidence which was impermissible even with.
A further example is Lee v The Queen [2014] HCA 20 at [52], where the Court applied section 17 in context. The Court held that recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution[19], a protection which cannot be waived[20]. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 17.
Practical takeaway:
Section 17 applies only in criminal proceedings
Associated accused are not compellable against each other
Stanley v DPP (NSW) [2023] HCA 3 at [163]
Guiding proposition:
The Court held that in Kirk v Industrial Court (NSW)[138], the misconceptions involved the core of the offence-creating provision, s 15 of the Occupational Health and Safety Act 1983, and a departure from the applicable rules of evidence which was impermissible even with.
Guiding proposition:
The Court held that recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution[19], a protection which cannot be waived[20].
section 18 — Compellability of Spouses and Family Members
Section 18 of the Evidence Act 1995 governs compellability of spouses and others in criminal proceedings generally. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Ensure the witness is aware of section 18 before ruling on compellability.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where this section applies only in a criminal proceeding. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that a person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required to give evidence or to give evidence of a communication between the person and the defendant.
The application of section 18 is illustrated in Jurd v The Queen [2020] NSWCCA 91 at [77]. It must also be accepted that, as the Court found in the first s 5F appeal, a court must take adequate steps to satisfy itself that the witness is aware of the effect of s 18 as it may apply to the person, save in domestic violence and child sexual assault...
A further example is Jurd v The Queen [2020] NSWCCA 91 at [75], where the Court applied section 18 in context. The Court held that with s 18, even if the applicant can raise a failure to comply with that provision as a basis upon which the evidence should have been excluded, a conclusion that Ms Mulvihill’s evidence would not have been adduced had the section been complied with can now. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 18.
Practical takeaway:
Ensure the witness is aware of section 18 before ruling on compellability
Proper advice and objection procedure must be followed
Jurd v The Queen [2020] NSWCCA 91 at [77]
Guiding proposition:
It must also be accepted that, as the Court found in the first s 5F appeal, a court must take adequate steps to satisfy itself that the witness is aware of the effect of s 18 as it may apply to the person, save in domestic violence and child sexual assault...
Guiding proposition:
The Court held that with s 18, even if the applicant can raise a failure to comply with that provision as a basis upon which the evidence should have been excluded, a conclusion that Ms Mulvihill’s evidence would not have been adduced had the section been complied with can now.
section 19 — Compellability of Spouses and Family Members in Certain Proceedings
Section 19 of the Evidence Act 1995 governs compellability of spouses and others in certain criminal proceedings. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Check whether the proceeding falls within section 19(2) before applying section 18.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where section 18 does not apply in proceedings for an offence against or referred to in section 227 (Child and young person abuse) or section 228 (Neglect of children and young persons) of the Children and Young Persons (Care and Protection) Act 1998, or where the person could be compelled under section 279 of the Criminal Procedure Act 1986, or in proceedings for an offence against section 93 or section 107 of the Children's Guardian Act 2019. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation.
The application of section 19 is illustrated in Jurd v The Queen [2020] NSWCCA 91 at [77]. It must also be accepted that, as the Court found in the first s 5F appeal, a court must take adequate steps to satisfy itself that the witness is aware of the effect of s 18 as it may apply to the person, save in domestic violence and child sexual assault...
A further example is Tran v The Queen [2018] NSWCCA 145 at [10], where the Court applied section 19 in context. The Court held that the effect of the Court’s decision has been reversed, in domestic violence and child sexual assault cases only, by amendments to s 279 of the Criminal Procedure Act and s 19 of the Evidence Act effected by the Justice Legislation Amendment Act (No 2) 2018 No. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 19.
Practical takeaway:
Check whether the proceeding falls within section 19(2) before applying section 18
The accused retains standing to be heard on compellability rulings
Amendments to section 19 may alter how section 18 operates in prescribed proceedings
Jurd v The Queen [2020] NSWCCA 91 at [77]
Guiding proposition:
It must also be accepted that, as the Court found in the first s 5F appeal, a court must take adequate steps to satisfy itself that the witness is aware of the effect of s 18 as it may apply to the person, save in domestic violence and child sexual assault...
Guiding proposition:
The Court held that the effect of the Court’s decision has been reversed, in domestic violence and child sexual assault cases only, by amendments to s 279 of the Criminal Procedure Act and s 19 of the Evidence Act effected by the Justice Legislation Amendment Act (No 2) 2018 No.
section 20 — Comments By Judicial Officers on Failure to Give Evidence
Section 20 of the Evidence Act 1995 governs comment on failure to give evidence. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 20 protects the accused's right to silence in the courtroom.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where this section applies only in a criminal proceeding for an indictable offence. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that the judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because.
The application of section 20 is illustrated in McNamara v the King [2023] HCA 36 at [84]. The Court held that for example, in Pt 2.1 of the Act, headed "Witnesses", s 20(2) provides that "[a] judge or any party (other than a prosecutor) may comment on a failure of the defendant to give evidence" and then proceeds to address a joint trial of co-accused by stating that.
A further example is JPM v The Queen [2019] NSWCCA 301 at [242], where the Court applied section 20 in context. The Court held that nor did any issue arise concerning the qualified prohibition in s 20(2) of the Evidence Act 1995 on any comment being made on the failure of the accused to give evidence. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 20.
Practical takeaway:
Section 20 protects the accused's right to silence in the courtroom
Restrictions on judicial comment apply to indictable criminal proceedings
McNamara v the King [2023] HCA 36 at [84]
Guiding proposition:
The Court held that for example, in Pt 2.1 of the Act, headed "Witnesses", s 20(2) provides that "[a] judge or any party (other than a prosecutor) may comment on a failure of the defendant to give evidence" and then proceeds to address a joint trial of co-accused by stating that.
Guiding proposition:
The Court held that nor did any issue arise concerning the qualified prohibition in s 20(2) of the Evidence Act 1995 on any comment being made on the failure of the accused to give evidence.
section 37 — Restrictions on Leading Questions in Chief
Section 37 of the Evidence Act 1995 governs leading questions. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Context matters — recorded conversations and child interviews may require leave.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where a leading question must not be put to a witness in examination in chief or in re-examination unless the court gives leave, the question relates to a matter introductory to the witness’s evidence, no objection is made to the question and (leaving aside the party. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that unless the court otherwise directs, subsection (1) does.
The application of section 37 is illustrated in LF v The King [2023] NSWCCA 232 at [45]. The Court held that specifically, the appellant submitted that Q&A 287-290, 317 and 335-339 were leading and improper questions engaging the prohibition in s 37(1) and the discretion conferred by s 135 or mandatory power conferred by s 137.
A further example is R v Eade [2002] NSWCCA 257 at [34], where the Court applied section 37 in context. The Court held that however identification of a recording of a conversation is raised with a witness who had no part in making the recording but did take part in the conversation, what in substance is being done is to have the witness assent to the conversation having occurred. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 37.
Practical takeaway:
Context matters — recorded conversations and child interviews may require leave
Section 37(1)(c) permits leading questions where each other party is represented and does not object
LF v The King [2023] NSWCCA 232 at [45]
Guiding proposition:
The Court held that specifically, the appellant submitted that Q&A 287-290, 317 and 335-339 were leading and improper questions engaging the prohibition in s 37(1) and the discretion conferred by s 135 or mandatory power conferred by s 137.
Guiding proposition:
The Court held that however identification of a recording of a conversation is raised with a witness who had no part in making the recording but did take part in the conversation, what in substance is being done is to have the witness assent to the conversation having occurred.
Section 38 of the Evidence Act 1995 governs unfavourable witnesses. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Prosecutors usually need leave before impugning a Crown witness in final address.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where a party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about evidence given by the witness that is unfavourable to the party, a matter of which the witness may reasonably be. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that questioning a witness under this section is taken to be cross-examination for the purposes.
The application of section 38 is illustrated in Ombelli v The King [2026] NSWCCA 65 at [82]. The Court held that in the presence of the jury, the prosecutor indicated that he had an application under s 38(3) of the Evidence Act (which entitles the examiner, with leave, to question a witness about matters relevant only to the witness’s credibility).
A further example is Carter (a pseudonym) v The King [2026] NSWCCA 43 at [69], where the Court applied section 38 in context. The Court held that when the mother was cross examined by the prosecution by leave granted under s 38(1)(a) of the Evidence Act 1995, she disagreed that the complainant ever said anything to her about the applicant entering the shower or touching her or her vagina while. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 38.
Practical takeaway:
Prosecutors usually need leave before impugning a Crown witness in final address
A significant allegation of wrongdoing against a prosecution witness usually requires section 38 leave
Ombelli v The King [2026] NSWCCA 65 at [82]
Guiding proposition:
The Court held that in the presence of the jury, the prosecutor indicated that he had an application under s 38(3) of the Evidence Act (which entitles the examiner, with leave, to question a witness about matters relevant only to the witness’s credibility).
Carter (a pseudonym) v The King [2026] NSWCCA 43 at [69]
Guiding proposition:
The Court held that when the mother was cross examined by the prosecution by leave granted under s 38(1)(a) of the Evidence Act 1995, she disagreed that the complainant ever said anything to her about the applicant entering the shower or touching her or her vagina while.
Section 39 of the Evidence Act 1995 governs limits on re-examination. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 108 does not displace the section 39 limits on topic. On re-examination— (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination, and (b) other questions may not be put to the witness unless the court gives leave.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where on re-examination a witness may be questioned about matters arising out of evidence given by the witness in cross-examination, but other questions may not be put to the witness unless the court gives leave. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation.
The application of section 39 is illustrated in Booth v The Queen [2022] NSWCCA 113 at [22]. It is regrettable that there was no objection to the emphasised question in the extract in [20] containing, as it did, four contestable propositions namely: (i) that there was something that AR regretted, (ii) something that made her cranky and that she...
A further example is Medich v R [2021] NSWCCA 36 at [822], where the Court applied section 39 in context. The Court held that kaminic’s understanding of what Haissam Safetli intended to convey did not arise out of the questions asked in cross-examination: s 39(a) of the Evidence Act 1995. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 39.
Practical takeaway:
Section 108 does not displace the section 39 limits on topic
Re-examination must not introduce new substantive topics not tested in cross-examination
Booth v The Queen [2022] NSWCCA 113 at [22]
Guiding proposition:
It is regrettable that there was no objection to the emphasised question in the extract in [20] containing, as it did, four contestable propositions namely: (i) that there was something that AR regretted, (ii) something that made her cranky and that she...
Guiding proposition:
The Court held that kaminic’s understanding of what Haissam Safetli intended to convey did not arise out of the questions asked in cross-examination: s 39(a) of the Evidence Act 1995.
Section 40 of the Evidence Act 1995 governs witness called in error. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Works alongside section 26 controls on confusing or misleading questions.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where a party is not to cross-examine a witness who has been called in error by another party and has not been questioned by that other party about a matter relevant to a question to be determined in the proceeding. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation.
The application of section 40 is illustrated in Carnaby v The Queen [2021] NSWCCA 275 at [135]. The Court held that cross-examination controls under sections 26 and 40 operate alongside each other and questioning must be fair and must not confuse or harass the witness.
At trial, the party relying on section 40 should prepare submissions that connect the statutory text to the facts in issue, identify any exceptions, and explain why alternative provisions do not displace the section. Where the court is asked to exclude, limit or facilitate evidence, the ruling should record the findings necessary to support appellate review.
Practical takeaway:
Works alongside section 26 controls on confusing or misleading questions
Questioning must be fair and must not confuse or harass the witness
Carnaby v The Queen [2021] NSWCCA 275 at [135]
Guiding proposition:
The Court held that cross-examination controls under sections 26 and 40 operate alongside each other and questioning must be fair and must not confuse or harass the witness.
Section 41 of the Evidence Act 1995 governs improper questions. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Advance rulings should take into account sections 41(2) and 192(2).
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where the court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a disallowable question. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that ) is misleading or confusing, is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, is.
The application of section 41 is illustrated in Carnaby v The Queen [2021] NSWCCA 275 at [135]. It is often the case something might be put to a witness, “I put it to you, you raised your right fist, I put it to you that you threw a punch.” Merely the fact a witness at the outset doesn't accept they raised fists, in my submission shouldn't then prevent...
Practical takeaway:
Advance rulings should take into account sections 41(2) and 192(2)
Questions predicated on rejected assumptions or embedding multiple contestable propositions are apt to be improper
Carnaby v The Queen [2021] NSWCCA 275 at [135]
Guiding proposition:
It is often the case something might be put to a witness, “I put it to you, you raised your right fist, I put it to you that you threw a punch.” Merely the fact a witness at the outset doesn't accept they raised fists, in my submission shouldn't then prevent...
