THE EVIDENCE ACTS

483

By section 1 of the Evidence Act, 1898, (see p. 521, post), that Act and the Evidence and Discovery Act of 1867, (see below), the Evidence Further Amendment Act of 1874 (p. 517, post), and any Acts amending the same, may be cited together as "The Evidence Acts".

EVIDENCE AND DISCOVERY ACTS, iS67 to 1962

Evidence and Discovery Act of 1867, 31 Vic. No. 13

Amended by Evidence Fnrther Amendment Act of 1874,37 Vic. No.9 Justices Act of 1886, 50 Vic. No. 17 Stamp Duties Act Amendment Act of 1890, 54 Vic. No. 28 (Repealed) Criminal Law Amendment Act, 1892, 56 Vic. No.3 Criminal Law Amendment Act of 1894, 58 Vic. No. 23 Criminal Code Act, 1899, 63 Vic. No.9 Acts Shortening Act Amendment Act of 1903, 3 Edw. 7 No. 10 Statute Law Revision Act of 1908, 8 Edw. 7 No. 18 Evidence and Discovery Act Amendment Act of 1927, 18 Geo. 5 No. 18 Australian Consular Officers' Notarial Powers and Evidence Act of 1946,

10 Geo. 6 No. 43 Evidence Act A~endment Act of 1959, 8 Eliz. 2 No. 46 Evidence and Discovery Acts and Other Acts Amendment Act of 1960,

9 Eliz. 2 No. 22 Evidence Acts Amendment Act of 1962, No.9 of 1962

An Act to Consolidate and Amend the Law of Evidence and Discovery at Common Law

[Assented to 28 December 1867]

Collective title conferred by Evidence Aots Amendment Act of 1962, No. 9 of 1962, s. 3 (2). .

References to "Pring's Statutes" and to Colomal Acts were omitted from the sectional notes to this Act by the Acts Shortening Act AmendmeDit Act of 1903, s. 10 (see now Acts Citation Act of 1903, 3 Edw. 7 No. 10), title ACTS OF PARLIAMENT, Vol. 1, p. 76.

Preamble repealed by the Statute Law Revision Act of 1908, s. 2, title ACTS OF PARLIAMENT, Vol. 1, p. 109.

484 EVIDENCE Vol. 5

JUDICIAL NOTICE

1. Proclamations and Orders in Council to be judicially noticed. Every proclamation or order of the Governor in Council made or purporting to be made in pursuance of any Act or statute and published in the Gazette shall be judicially taken notice of.

Formal proof of the documents referred to is not necessary (McLay v. Reis (1899), 9 Q.L.J. 120; Ex parte Sexton (1919), 19 S.R. N.S.W. 51). A proclama­tion applying an Act .to a particular place in pursuance of a provision of the Act, was held to be judicially' noticeable in Cramb v. Brady (1882), 1 Q.L.J. 82 (distinguished in Ex parte Madsen; Re Hawes and Blissett, [1960] N.S.W.R. 126), cf. Blake v. Hatte, [1929] St. R. Qd. 271; 23 Q.J.P.R. 163.

As to proof of awards and orders of the lndustrial Court, see Industrial Conciliation and Arbitration Acts, 1961 to 1963, s. 128, title LABOUR.

2. Copies of private Acts journals of the Legislative Council and Assembly proclamations and commissions by the Governor printed by the Government Printer admissible as evidence. 8 & 9 Vic. c. 113 s. 3. All copies of private and local and personal Acts not being public Acts and all copies of the journals of the Legislative Council and Legislative Assembly and all proclamations and commissions issued by the Governor or by the officer administering the Government for the time being if purporting to be printed by the government printer or by the authority of the Government shall be admitted as prima facie evidence thereof by all courts judges justices and others in the said colony without proof being given that such copies were so printed.

All Acts are deemed to be public Acts and are to be judicially noticed as such unless the contrary be expressly provided, Acts Interpreta·tion Acts, 1954 to 1962, s. 11, title ACTS OF PARLIAMENT, Vol. 1, p. 85. For the classification into private, local and personal Acts, see 36 Halsbury's Laws of England, 3rd ed., title Statutes, p. 363.

A document may be made part of the evidence in the case by being dealt with as part of the material before the Court without being put in evidence formaHy. See Grieve v. Lewis (1917), 23 C.L.R. 413.

3. Courts etc., to take judicial notice of signature of the judges of Supreme Court and of certain officers thereof. 8 & 9 Vic. c. 113 s. 2. All courts judges justices prothonotaries masters in equity registrars commissioners or other persons officiating judicially shall henceforth take judicial notice of the signature of any of the judges of the Supreme Court and also of the prothonotary and master in equity and registrar thereof respectively and of any deputy or acting prothonotary master in equity or registrar of the said Supreme Court.

Provided such signature shall purport to be attached or appended to any decree order certificate or other judicial or official document.

As amended by Acts Citation Act of 1903, 3 Edw. 7 No. 10, s. 10, title ACTS OF PARLIAMENT, Vol. 1, p. 76.

As to judicial notice of the impression of a judge's name made by a stamp, see Supreme Court Act of 1867, s. 4, title SUPREME COURT.

Provision with respect to judicial notice of seals and signatures of Registrars and Deputy or Assistant Registrars of Companies is made by the Companies Acts, 1961 to 1964, s. 7 (4), title COMPANIES, Vol. 2, p. 43. .

See also Magistrates Courts Acts, 1921 to 1964, s. 10 (2), title MAGISTRATES COURTS (process of Magistrates Courts purporting to be sealed to be received in evidence); Land Acts; 1962 to 1963, ss. 35, 44, ·title LAND (judicial notice of seals of Land Court and Land Appeal Coui't; Industrial Conciliation and Arbitration Acts, 1961 to 1963, s. 7 (9), title LABOUR (judicial notice of seal of Industrial Court). .

EVIDENCE AND DISCOVERY ACTS, 1867 TO 1962 ss.I-4 485

The 'use of -the otenn "O'fficial dO'cument" does nO't mean that there must be independent proO'f of the O'fficial character. It is sufficient if the instrument appears to' be of an official character, Holland v. ·Jones (1917),23 C.L.R. 149.

Courts take judicial notice at common law O'f all facts so generally known that every O'rdinary persO'n may be reasonably presumed to' be aware O'f them. Th~y will therefore take judicial notice O'f whO' are Ministers of the Crown and of theIr signatures on official documents, ibid.

Where a judge of a district mining court bad merely signed his name at the foot of a winding-up O'rder withoutdescPibing himself as judge, judicial notice was taken of such signature, Walker v. Jenkins (187,0), 1 V.R. (L.) 9.

For English cases, see 22 Engl-ish and Empire Digest, (Rpl.), p. 152.'

COMPETENCY AND PRIVILEGES OF WITNESSES'

4. Witnesses not to be excluded from giving.evidence by incapacity from crime or interest. 6 & 7 Vic. c. 85 s. 1. 14 & 15 Vic. c. 99. 16 & 17 Vic. c. 83. , No person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest from giving evidence either in person or by deposition according to the practice of the court on the trial of any issue joined or of any matter or question or on any inquiry arising in any suit action or proceeding civil or criminal in any court or before any judge jury sheriff coroner magistrate officer or person having by law or by consent of parties authority to hear receive and examine evidence in the colony of Queensland '

but every person so offered may and shall be admitted to give evidence on oath or solemn affirmation or declaration in those cases wherein such affirmation or declaration is by law receivable notwithstand­ing that such person mayor shall have an interest in the matter in question or in the event of the trial of any issue matter or question or in any inquiry arising in any suit action or proceeding in which he is offered as a witness and notwithstanding that such person offered as a witness may have been previously convicted of any crime or offence.

As amended by Acts Citation Act O'f 1903, 3 Edw. 7 NO'. 10, s. 10, title ACTS OF PARLIAMENT, VO'I. 1, p. 76.

The grO'und upon which an accused person was formerly prevented from giving evidence was ,that he had an interest in the matter. It was therefore held that such a person was enabled to' give evidence by a similar sectiO'n, R. v. White (1899), 20 L.R. (N.S.W.) 12. But now see alsO', as >to the competence of persons accused and their spouses to' give evidence, s. 5, post and provisions noted there­under; Criminal Code, ss. 213-220, 222, 223, 353, 618A, title CRIMINAL LAW, Vol. 3; Justices Acts, 1886 to 1964, s. 75, title JUSTICES; Maintenance Acts, 1949 to 1954, s. 31, ,title MARRIAGE AND DIVORCE. Prosecutors in pro­ceedings before justices are competent witnesses, Justices Acts, 1886 to' 1964, s. 74.

The English section O'f which this section isa transcript was elucidated by the Court O'f Appeal in Pcryser v. Poyser and Others, [1952] 2 All E.R. 949, where SingletO'n, J., (with whose judgment the other members O'f the Court agreed) in cO'nstruing the prO'visO', reframed a passage in Latey O'n DivO'rce, 14th ed., p. 406. His LO'rdsrnp said: "It is mot always ,that the failure O'f a persO'n to' give evidence will be taken strongly against such party . ., Each case must depend O'n its O'wn circumstances . .. If there is a prima facie case O'f adultery and the respondent says: 'I am not going intO' the witness-box to' deny that O'r the resPO'ndent's counsel says: 'I will ,not ask my client a questiO'n on that, SO' that he (or she) cannot be cross-examined O'n it,' it is a matter which ,the court is entitled to' take into cO'nsideration. It is ·not O'f necessity a strO'ng PO'int, thO'ugh it might be in some cases. 11 is possible to' imagine a case in which a party might not desire to' go intO' the witness-box for O'ther reasoms altO'gether, perhaps reasons of health ... "

Quaere whether this section and s. 5, post, preserve O'r exclude the general rule at cO'mmon law ,that a wife may nOit give evidence against her husband charged with an O'ffence unless the offence relates to the wife's O'wn person, health or liberty. Cf. Sharp v. Rodwell, [1947] V.L.R. 82.

, See generally, as to the comperence O'f witnesses, 15 Halsbury's Laws O'f England, 3rd ed., p. 418 et seq.; 22 English and Empire Digest (Rpl.) p. 381.

486 EVIDENCE Vol. 5

5. Parties to actions and their husbands and wives made competent and compellable to give evidence for or ag~ themselves. 14 & 15 Vic. c. 99 s. 2. 16 & 17 Vic. c. 83 s. 1. On the trial of any issue joined or of any matter or question or on any inquiry arising in any suit action or other proceeding in any court of justice or before any person having by law or by consent of parties authority to hear receive and examine evidence the parties thereto and the persons in whose behalf any such suit action or other proceeding may be brought or defended and the husbands and wives of such parties and persons respectively shall except as hereinafter excepted be competent arid compellable to give evidence either viva voce or by deposition according to the practice of the court on behalf of either or any of the parties to the said suit action or other proceeding.

, See also Evidence Further Amendment Acts, 1874 to 1962, 55. 2 (breach of promise actions), 3 (evidence as to access by a spouse), 3A (suits for adultery), post; Equity Aots, 1867 to 1960, s. 48, title ;PRACTICE (defend'oXnts in equity proceedings; Industrial Conciliation ami Arbitration Acts, 1961 to 1963, Schedule I, c. 6 (f), title LABOUR (parties in proceedings before Industrial Court. are com­petent and compellable); s. 4, al1!le, and provisi'OIlS noted thereunder.

The husband or wife of a person accused of a simple offence is competent and compellable to give evidence irrespective of the consent of the accused, Finglas v. Cahill, Ex parte Cahill,. [1961] Qd. R. 323.

6. (Repealed.) Repealed by the Evidence Further Amendment Act of 1874, 37 Vic. No.9,

s. 1. ' '

NEMO TENETUR SEIPSUM ACCUSARE

7. Persons charged or witnesses impeachable criminaUy. 14 & 15 Vic. c. 99 s. 3. Nothing hereinbefore contained shall render any person com­pellable to, answer any question tending to criminate himself or herself.

As amended by Criminal Law Amendment Act, 1892, 56 Vic. No.3, s. 2, title CRIMINAL LAW.

As to questions tending to show that a person is liable to civil proceedings, see s. 20, post. The witness must himself claim the privilege of refusin;g to answer, Thomas v. Newton (1827), 2 C. & P. 606. He may do so Illt any time, R. v. Garbett (1847), 2 eM". & Kir. 474.

When a question is, in form 'an innocent one, it is not enough for a witness to say 'that he believes his answer to it will criminate him. He must satisfy the Court that there is a reasonable probability that his answer will or may crimioote , him, Mitton v. Curl, [1922] S.A.S.R. 282, at p. 284; R. v. Boyes (1861), 30 L.I.Q.B. 301. '

For illustrations of circumstances in which a witness is entitled to chum the privilege of silence see R. v. Jones, [1957] S.A.S.R. 118, and Ex parte P., Re Hamilton (1957), 74 W.N. (N.S.W.) 397; 51 Q.I.P.R. 131. The claim must not be made mala fide, i.e., with the object of obstructing the course of justice rather than of protecting the witness himself. The bare oa.th of the witness that he is endangered bybei-ng compelled to answer is not necessarily conclusive: the court. must see from the circumstances of ,the case and the nature of the evidence which the witness has been called to give ,that 'there is reasonable .ground to apprehend danger from his being compel\ed to answer, ibid. , As to the effect of this section, notwithstanding ss. 68 and 69 of the Bank­ruptcy Act 1924-1960, R. v. Wetherell, [1938] Q.W.N. 13, cannot be regarded as 'all authority. See R. v. Kempley (1944), 44 S.R. (N.S.W.) 416; 61 W.N. (N.S.W.) 169, from which the High Court refused leave to appeal (Kempley v. R., 18 A.L.I. 118). See also R. v. Owen, [1951] .V.L.R. 393; [1951]. A.L.R. 852.

EVIDENCE AND DISCOVERY ACTS, 1867 TO 1962 ss. 5·11 487

HUSBAND AND WIFE' 8. (Repealed.)

Repealed by Criminal Law Amendment Act of 1892, . 56 Vic. No. 3",s. 2,. title CRiMINAL LAW.

9. Communications to husband or wife privileged 16. & 17 Vic. c. 8,3 s. 3. No husband shall be compellable to disclose any communication made to him by his wife during the marriage and no wife shall be com­pellable to disclose.any communication made to her byber husband during the marriage.

As amended by Evidence and Discovery Act Amendment Act of 1927, 18 Geo. 5 No, 18, s. 2, post. .' .

Communications made during the marriage between husband and wife were, at common law, privileged f.rom disclosure on the ground that to compel a wife to disclose what her husband has said to her would tend to destroy the unlimited confidence that should exist between man and wife.

The rule applies even when the parties are divorced, Monroe v. Twisleton (1802), Peake Add. Cas .. 219, or one of them is dead, Doker v. Hasler (1824), Ry, & M. 198. '

It was held of a 'similar sectiOIlJ ,negativing competence that the protection applied to communications by the spouse giving evidence as well as to those made by the other spouse, Moore v. Whyte (1922), 22 S.R. (N.S.W.) 570. A third party may, however, give evidence of what occuNed during a conversation between husband and wife, Ramp v. Robinson (1865), 16 LT. 29; R. v. Pierce (1917), 17 S.R. (N.S.W.) 135; R. v. Dowling (1883), 9 V.LR. (L) 79.

The protection is not confined to cases where the communicatio1lJ is of a strictly confidential character, Williamson v. Williamson (1921), 21 S.R. (N.S.W.) 216, It was held of a section negativing competence that the protectiOIlJ did not apply to a conversation between husband and wife during interrogation by a third party, R. v. Pierce (1917), 17 S,R. (N,S.W,) 135, ,

A letter written by one spouse to the other, which is found 0Ili the writer and never reaches the other spouse, is not a protected communication, R. v. Pierce, supra.

See generaUy ,the cases cited in the 22 English and Empire Digest, (Rpl.) p.413. .

10. Wife petitioning for dissolution of marriage husband and wife may give evidence relating to cruelty or desertion. 22 & 23 Vic. c. 61 s. 6. On any petition presented by a wife praying that her marriage may be dissolved by reason of her husband having been guilty of adultery coupled with cruelty .or of adultery coupled with desertion the husband and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or desertion.

Petitions for dissolution of marriage are now the subje~t of the Matrimonial Causes Act, 1959 (Commonwealth).

RATED INHABITANT

11. Rateable inhabitants not incompetent witnesses in certain cases on behalf of or against certain districts. 54 Goo. 3 c. 170 s. 9. No inhabitant or person rated or liable to be rated to any rates or cesses of any district wholly or in part maintained or supported thereby or executing or holding any office thereof or therein shall before any court or person or persons whatsoever be deemed and taken to be by reason thereof an incompetent witness for or against such district in any matter relating to such rates or cesses or to the boundary between such distri~ and any

. adjoining district or the election or appointment of any officer or officers or the allowance of the accounts of any officer or officers of any, such district. . '

See s. 14.

488 EVIDENCE Vol. 5

I

12. Persons not disqualified from giving evidence on account of being assessed to rates. 3 & 4 Vic. c. 26 s. 1. No person called as a witness on any trial in any court whatever may and shall be disabled of or prevented from giving evidence by reason only of such person being as the inhabitant of any district rated or assessed or liable to be rated or assessed for any purpose whatever.

See s. 14.

13 •. Nominal rateable parties on any trial not disqualified from glVmg evidence. 3 & 4 Vic. c. 26 s. 2. No officer in and for any district nor any person rated or assessed or liable to be.rated or assessed as aforesaid shall be disabled or prevented from giving evidence on any trial 'appeal or other proceeding by reason only of his being a party to such trial appeal or other proceeding or of his being liable to costs in respect thereof when he shall be only a nominal party to such trial appeal or other proceeding and shall be only liable to contribute to such costs in -common with other the ratepayers of such district.

See s. 14.

14. Word "district" to include province county etc. In the three sections last preceding the word "district" shall be held to include province county parish city town township hamlet and other like division.

INTEREST

15. Certain verdicts or judgments not to be used for or against witness. If any witness shall be objected to as incompetent on the ground that the verdict or judgment in the action would be admissible in evidence for or against him such witness shall nevertheless be examined but in that case no verdict or judgment pronounced or signed in any action shall at any time be admissible in evidence for or against any witness examined at the trial of the same or anyone claiming under him.

Provided that the name of every witness so objected to shall at the trial at the request of either party be indorsed on the record or docu­ment on which such trial is had by some officer of the court together with the name of the party calling him and be afterwards entered on the record of the judgment which judgment or entry shall in any subse­quent proceeding be sufficient evidence that such witness was so examined.

For the cases in which ,a verdict or judgment is admissible in evidence for or against a witness, see 15 Halsbury's Laws of England 3rd ed., p. 396.

CREDIT OF PARTY'S OWN WITNESS

16. How far a party may discredit his own witness. Buller's Nisi Prius p. 297. Melhuish v. Collier,19 L.J. Q.B. p. 493 15 Q.B. 878. And whereas "a party never shall be permitted to produce general evidence to discredit his own witness for that would be to enable him to destroy the witness if he spoke against him and to make him a good witness if he spoke for him with the means in his hand of destroying his credit if he spoke against him but if a' witness prove facts in a cause which make against the party who called him yet the party may call other witnesses to prove that, those facts were otherwise for. such facts are evidence in the cause and the other witnesses are not called directly to discredit the first witness but the impeachment of his credit is incidental and consequential only"

EVIDENCE AND DISCOVERY Acrs, 1867 TO 1962 ss.12-17 489

17 & 18 Vic. c. 125 s. 22. 28 Vic. c. 18 s. 3. Now therefore be it further provided and be it enacted as follows-A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character but he may in case the witness shall in the opinion of the judge prove· adverse contradict him by other evidence or by leave of the judge prove that he has made at other times a statement inconsistent with his present testimony but before such last-mentioned proof can be given the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and he must be asked whether or not he has made such statement

Greenough v. Eccles and others 28 L.J. C.P. 160 5 C.B. N~S. 7:86. Provided that nothing in the enactments of this section contained shall limit the common law right of a party to prove facts which are evidence on the trial. .

As amended by Acts Citation Act of 1903, 3 Edw. 7 No. 10, s. 10, title ACTS OF PARLIAMENT, Vol. 1, p. 76.

For a witness to be "·adverse" <there must be something either in his testimony or in the way he answers questions showing bias or hostility to the party calling him; it is not sufficient that the evidence is not what that party wants or is contrary to the position .that party has taken up, Bell v. Bell (1905), 8 N.Z.G.L.R. 427; Greenough v. Eccles (1859), 5 C.B.N.S. 786.

Whether a witness is adve·rse is a question for the judge, Greenough v. Eccles, supra; Price v. Manning (1889), 42 Ch. D. 372, and his decision cannot be reviewed on appeal, Rice v. Howard (1886), 16 Q.B.D. 681; R. v. Williams (1913),77 J.P. 240; Harris v. Minister for Public Works (1912), 12 S.R. (N.S.W.) 149.

A judge is not restricted to observ·ation of the demeanour of a wi·tness in forming 'his opinion as to whether he is hostile, but is entitled, for that purpose, to receive evidence of a statement made by the witness, and inconsistent with his evidence, Russell v. Dalton (1883), 4.L.R. (N.S.W.) (L.) 261.

Where a witness gives evidence inconsistent with a statement which he has previously made to the solicitor of the party calling him, the Court should not allow the solicitor to give evidence of such statement for the purpose of determining whether the witness is adverse, Bassett v. Ferguson, [1952] V.L.R. 481; [1952] A.L.R. 869, not following Russell v. Dutton, supra.

The prior inconsistent statement is evidence only for the purpose of discrediting the witness and cannot be used for my other purpose, Taylor v. R. (1918), 25 C.L.R. 573; R. v. Lynch (1858), Legge (N.S.W.) 1120; R. v. White (1922), 17 Cr. App. R. 60; R. v. Birch (1924), 93 L.J.K.B. 385.

As to the effect of evidence on oath confirming a statement in a document not in evidence, see Harper v. Counter, [1913] St. R. Qd. 249, at p. 252; [1913] Q.W.N. 55; 7 Q.J.P.R. 161.

Generally on the question of discrediting a witness hostile to the party that has called him, see R. v. Hunter, [1956] V.L.R. 31; [1955] A.L.R. 786. See also R. v. Harding, [1956] Q:W.N. 32, where Hanger, J., after allowing a statement in writing signed by the female in question to be proved, gave the Crown leave to cross-examine her. See also Bowyer v. McLellan (1960), 77 W.N. (N.S.W~) 861.

For other cases, see notes to s. 17, post; 14 English and Empire Digest (Rpl.) , p. 295; 22 English and Empire Digest (Rpl.), p. 477.

CROSS-EXAMINATION AND CREDIT OF WITNESS

17. Contradictory statements of adverse witness. 17 & 18 Vic c. 125 s. 23. 28 Vic. c. 18 s. 4. If a witness upon cross-examination as to a former statement made by him relative to the subject matter of the trial and inconsistent with his present testimony does not distinctly admit that he has made such statement proof may be given that he did in fact make it but before such proof can be given the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and he must be asked whether or not he has made such' statement.

490 EVIDENCE Vol. 5

Where' it is proposed to attack the veracity of a witness by evidence of former inoonsistent statemeDil.S, the fact that the former statements were made in the absence of ,the accused islllO ground for rejecting them. The object is not to prove the truth of the fact alleged in the statement, but, to show that, having made' contradictory statements, the wi1ness is not to be believed, Taylor v. R. (1918), 20 W.A.L.R.' 47, at p.' 50; decision reversed on ·another ground, 25 C.L.R.'573. '

As to the class of evidence which will constitute "a former statemeIlJt" in terms of this section, see Johnstone, O'Shannessy & Co. Ltd. v. Smith (1893), 19 V.L.R. 18; R. v. Coleman (1901),27 V.L.R. 153. "

For an eX!am'Ple of the application of this se«tion, see Heffernan v. Feros and Coleman, [1951] Q.W.N. 39. '

" 'As to ,when a statement is reiaJtive to' the subject matter of the trial, see McGahan v.Driver, [1936] Q.W.N. 45; 30 Q.J.P.R. 125.

As to what is "inconsistent", see Carbury v. Measures (1904),4 S.R. (N.S.W.) 569; Furlong v. Staniforth (1925),25 S.R. (N.S.W.) 364.

"P,resent .testi~ony" is testimony at any stage of the proceedings and is not limited to evidence in examination-in-chief, R. v. Rolton (1910), 29 N.Z.L.R. 272.

A defendant ,oan tender evidence in contradiction of evidence given for the first time in reply, Holmes v. Jones (1907), 4 C.L.R. 1692.

This section ~as passed to define the rights of the parties at trials. A judge must not examine persons, IlIot called by ,the parties Ull!iess the consent of the latter is express or clearly implied, and in criminal cases he must not examine such wi1nesses without the consent of the accused, Titheradge v. R. (1917), 24 C.L.R. 107; Dawson v. Zamnlit, [1936] St. R. Qd. 322; 30 Q.J.P.R. 163.

Where magistrates ruled that depositions taken in prior inooru:lusive proceedings against the same accused could not be used for purposes of showing that the evidence of witnesses was inconsistent with their evidence on such prior proceedings, the conviction was quashed, Harvey v. Rooke (.1919), 15 Tas. L.R. 44.

See, further, ,notes to s. 16, ante; 14 English and Empire Digest (R'PI.), p. 295; 22 English and Empire Digest (Rpl.), p. 477.

18. Cross-examination as to previous statements in writing. 17 & 18 Vic. c. 125 s. 24. 28 Vic. c. 18 s. 5. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject matter of the trial without such writing being shown to him but if it is intended to contradict such witness by the writing his attention must before such contradictory proof can be given be called to those parts of the writing which are to be used for the purpose of so contradicting him

Provided that it shall be competent for the judge at any time during the trial to require the production of the writing for his inspection and he may thereupon make such use of it for the purposes of the trial as he shall think fit.

It was 'held 'that a written agreement to accept oornpensation was a "previous s~atement .... in writing" and .that its terms could be obtained in cross-exarrrination without imposing an obligation to put the agreement in evidence, Barker v. Stoneham & Wilson Limited 0922),22 S.R. (N.S.W.) 512.

A witness may be cross-exarrrined as to a letter by his atJtomeys containing staJtemeDil.S inconsistent with his present testimony without the letter being put iJ.l evidence, Yates v. Municipal District of Dubbo (1882), 3 L.R. (N.S.W.)(L.) 315.

If .in' Clross-examina.tion ,a witness is shown depositions and asked if he adheres to something in them, even though this be for the object of refreshing the witness' memory, the ,depositions' must be put in evidence, R. v. Jack (1894), 15 L.R. (N.S.w.) (L.) 196.

The contenJts of the writing oan only be used for the purpose of discrediting the witness. not as part of the evidence on the issues in the case, Taylor v. R. (1918),25 C.L.R. 573. See also cases cited under s. 16, ante. .

EVIDENCE AND DISCOVERY ACTS, i867 TO 1962 ss.17·21 491

In Tuck v. Insurance Commissioner, [1941] Q.W.N. 27, where, although an industrial magistrate rejected a report of a medical witness tendered by the claimant, the contents of the report were established by cross-examination, it was held that an appeal sheuld not be allewed on the ground of such rejection.

See also notes to ss. 16, 17, ante.

19. Proof of previous conviction of a witness may be given. 17 & 18 Vic. c.12S s. 25. 28 Vic. c. 18 s. 6. A witness on any trial may be questioned as to whether he has been convicted of any felony or misde­meanour and upon being so questioned if he either denies the fact or refuses to answer it shall be lawful for the opposite party to prove such' conviction and a certificate conta~g the substance and effect only (omitting the formal part) of the indictment and conviction for such offence signed by the clerk of the court where the offender was convicted or by the deputy of such clerk or officer (for which certificate a fee of five shillings and no more shall be demanded and taken) shall upon proof of the identity of the person be sufficient evidence of the said conviction and such certificate shall prima facie be deemed to be so signed if it purport so to be and without proof of the signature or official character of the person appearing to have signed the same.·

As to the reference to a felony, see Criminal Code Act, 1899, 63 Vic. No.9, s. 4, title CRIMINAL LAW, Vol. 3.

Conclusive proof of identity is not necessary, but there must be some evidence to show that! the person previously OOIlivicted and the accused are the same person, Martin v. White [1910] 1 KB. 665, at p. 681.

As to questions relating toprevi.ous convictions where the witness is the accused in 'a criminal trial, see the Criminal Code, s. 618A, title CRIMINAL LAW, Vel. 3, p. 536.

20. Declaring the law respecting witness refusing to answer questions. 46 Geo. 3 c. 37 s. 6. A witness cannot by law refuse to answer a question relevant to the matter in issue the answering of which has no tendency to accuse himself or to expose him to penalty or forfeiture of any nature whatsoever by reason only or on the sole ground that the answering' of such question may establish or tend to establish that he owes a debt or is otherwise subject to a civil suit either at the instance of Her Majesty or of any other person or persons.

See also s. 7, to which this sectiOlll is in the na:ture of a proviso; 15 Halsbury's Laws of England, 3rd ed;, p. 423.

Since a questiOllJ which merely tends t.o fix a civil responsibili,ty is not barred, a defendan1 in an affiliation case is compellable to answer whether he is the father of the child, Re Carroll (1862), 1 S.C.R. (N.S.W.) (L.) 306.

As te answers to interr.oga,tories, see A.-G. v. Simpson (1878), 5 S.C.R. 98.

ADMISSIONS

21. Admissions as to documents. 15 & 16 Vic. c. 76 s. 117. Either party may call on the other party by notice to admit any document saving all just exceptions and in case of refusal or neglect to admit the costs of proving the document shall be paid by the party so neglecting or refusing whatever the result of the cause may be unless at the trial the judge shall certify thilt the refusal to admit was reasonable and no costs of' proving any document shall be allowed unless such notice. be given except in cases where the omission to give the notice is in the opinion of the prothonotary a saving of expense.

As amended by Acts Citation Act of 1903, 3 Edw. 7 No. 10, s. 10, title ACI'S OF PARLIAMENT, Vol. 1. p. 76.

492 EVIDENCE Vol. 5

See R.S.C. (1900), Order 36, rule 2, title SUPREME COURT, which .also applies to District Courts, by virtue of the District C'Ourts Acts, 1958 t'O. 1963, s. 188 (2), title DISTRICT COURTS, V'OI. 4, p. 530; Magistrates C'Ourts Rules, 1960, rule 176, title MAGISTRATES COURTS.

A notice to admit a document is some evidence, against the party giving such notice, of the existence of such document, Hinkle v. Schonbein (1865), 4 S.C.R. (N.S.W.) 306.

22. Proof of admissions. 15 & 16 Vic. c. 76 s. 118. An affidavit of the attorney in the cause or his clerk of the due signature of any admissions made in pursuance of such notice and annexed to the affidavit

. shall be in all cases sufficient evidence of such admissions. See now R.S.C. (1900), Order 36, rule 6, title SUPREME COURT, which

also applies t'O District Courts, by virtue 'Of the District Courts Aots, 1958 t'O 1963, s. 188 (2), title DISTRICT COURTS, Vol. 4, p. 530; Magistrates Courts Rules, 1960, rule 179, title MAGISTRATES COURTS.

23. Proof of notice to produce. 15 & 16 Vic. c. 76 s. 119. An affidavit of the attorney in the cause or his clerk of the service of any notice to produce in respect of which notice to admit shall have been given and of the time when it was served with a copy of such notice to produce annexed to such affidavit shall be sufficient evidence of the service of the original of such notice and of the time when it was served.

See now RS.C. (1900), Order 36, rule 7, title SUPREME COURT, which also applies t'O District C'Ourts by virtue of the District Courts Acts, 1958 to 1963, s. 188 (2), title DISTRICT COURTS, Vol. 4, p. 530; Magistrates Courts Rules, 1960, rule 180 (2), title MAGISTRATES COURTS.

PROOF OF HANDWRITING

24. Comparison of disputed writing. 17 & 18 Vic. c. 125 s. 27. 28 Vic. c. 18 s. 8. Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses and such writings and the evidence 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.

As ,amended by the Acts Citati'On Act 'Of 1903, 3 Edw. 7 N'O. 10, s. 10, title ACTS OF PARLIAMENT, Vol. 1, p. 76.

This section applies t'O both crimiIlJal and civil proceedings, R~ v. Beckmann (1901), 11 Q.L.J. 1; 11 Q.L.J. (N.C.) 1.

As t'O what constitutes sufficient proof 'Of handwriting <t'O enable disputed writing .t'O be compared with it under this section, see Field v. Shead (1908), 3 Q.J.P.R. 1. .

The writings produced for comparison may be used in evidence solely f'Or that purpose, Birch v. Ridgway (1858), 1 F. & F. 270.

It has been held that a magistrate sitting as a judge of questions 'Of fact, is entitled to c'Ompare .disputed handwriting with ,genuine handwriting; Wendt v. Lind, [1913] St. R. Qd. 240; [1913] Q.W.N. 53; 7 Q.J.P.R. 139. But see R. v. Harvey (1869), 11 Cox C.C. 546.

See generally 22 English and Empire Digest (oRpl.), p. 190.

PROOF OF ATTESTED WRITINGS

25. Attesting· witness. 17 & 18 Vic. c. 125 s. 26. 28 Vic. Co 18 s. 7. It shall not be necessary to prove by the attesting witness any instrument of the validity of which attestation is not requisite and such instrument may be proved by admission or otherwise as if there had been no attesting witriess thereto.' .

Even after parties t>ecame c'Ompetent witnesses, an admission by a' party wh'O had executed a deed was insufficient t'O prove its execution, Whyman v. Garth .1853), 8 Exch. 803.

EVIDENCE AND DISCOVERY ACTS, 1867 TO 1962 ss.21-26 493

Notwithstanding this section, in any proceedings ex parte a deed must be proved by the attesting witness, Re Reay's Estate (1855), 5 .Eq. Rep. '512, or by proving his handwriting, Re Rice (1886), 32 Ch. D. 35.

As to the necessity for callirig attesting witnesses generally, see 22 English and Empire Digest, (Rpl.), pp. 491-501.

For the common law relating to the manner of proving execution, see Mulgrave Central Mill Company Ltd. v. Toohea, [1906] St. R. Qd. 203; [1906] Q.W.N. 38, where a provision simiJa·r to ,this section in another Act was considered.

Compare s. 25A.

2SA. Proof of instrument of validity of which attestation is necessary. Subject as hereinafter provided, any instrument of the validity of which attestation is requisite may, instead of being proved by an attesting witness, be proved in the maIiner in which it might be proved if no attesting witness were alive:

. Provided that nothing in this section shall apply to the proof of wills or other testamentary documents.

Inserted by Act No.9 of 1962, s. 4. The Court bas a discretion to apply this section to proceedings commenced

before 12 November 1962, the date of commencement of the Act of 1962. See ibid., s. 1 (2).

This section is virtually a transcript of the Evidence Act, 1938, s. 3, (Imperial), for which see 9 Halsbury's Sta,tutes of England, 2n<;l Ed., p. 626.

Compare s. 25. If an attesting wi·tness to a document required by law to be attested is dead,

proof of his handwriting, together with some evidence to conrnect the maker with the instrument purporting to be executed in his name, is suffkient to prove execution. It is not essential to prove the handwriting of the maker, Nelson v. Whittall (1817), 1 B. & Ald. 19; 106 E.R. 8. See also Keohane Y. Byrne, [1935] N.!. 63.

As to ·the proof of wills and other testamentary documents, see ss. 27 et. seq.; R.S.C. (1900), Order 71, rules 13-15, title· SUPREME COURT (on application for probMe).

SECONDARY EVIDENCE

26. Machine copies to be evidence. When any writing whatsoever shall have been copied by means of any machine or press which produces a fac-simile impression or copy of such writing such impression or copy shall upon proof to the satisfaction of the court or person having by law or by consent of parties authority to hear receive and examine evidence that the same was taken or made from the original writing by means of

. such machine or press as aforesaid be prima facie. evidence of such writing without any proof that such impression or copy was compared with the said original thereof and without any notice to produce such original. .

It is not necessary to prove by dkect evidence that the press copy prOduced was taken from the original letter, and it' is for the judge to say whether the evidence produced satisfies him that the press copy was' taken from the original writing by means of a machi·ne or press, R. v. Ryan (1870), 1 A.J.R. 27.

Under ·a similar section it was held' that such section. made a press copy evidence without comparison, but did not make it primary evidence except as to dispensing with notice to produce, Harrison v. Smith (1869), 6 W.W. & a'B. (Eq.) 182. .

In an action to set aside a mortgage given by an insolvent, on the ground of fraudulen.t preference, press copies of letters written by creditors to him at the time of the giving of the mortgage, showing that pressure was being. brought to bear on him, were held not admissible without proof of comparison with th(: originals, Grieve v. Bodey (1894), 20 V.L.R·. 269.

494 EVIDENCE Vol. 5

WILLS

27. Wills. deeds, etc., may be verified on declaration. It shall and may be lawful to and for any attesting witness to the execution of any will or codicil deed or instrument in writing and to and for any other competent person to verify and prove the signing sealing publication or delivery of any such will codicil. deed or instrument in writing by declaration in writing made under the Oaths Act or any like Act for the time being and every justice notary or other officer or person by law authorised to administer an oath shall be and is hereby authorised and empowered to administer or receive such declaration.

Act referred to: OathS Acts, 1867 to 1960, title OATHS.

As to proof of execution and attestation of wills on application for probate, see R.S.C. (1900), Order 71, rules 13-15, title SUPREME COURT.

28. Plaintifi with notice of trial to give notice that he will use such declaration. The party intending to adduce such verification and proof as in the section last preceding mentioned shall give such notice of such his intention to give in evidence such a declaration as in the last preceding section mentioned as may be required by any general rules and orders made as hereinafter mentioned otherwise such declaration shall not be admissible.

As to notice under this section, see R.S.C. (1900), Order 36, rule 4, title SUPREME COURT.

29. Probate or office copy to be evidence of the will in suits relating to real estate unless the validity of the will is disputed. 20 & 21 Vic. c. 77 s. 64. In any action at law or suit in equity where according to law it would be necessary to produce and prove an original will in order to establish a devise or other testamentary disposition of or affecting real estate it shall be lawful for the party intending to establish in proof such devise or other testamentary disposition to give to the opposite party ten days at least before the trial or other proceeding in which the said proof shall be intended to be adduced notice that he intends at the said trial or other proceeding to give in evidence as proof of the devise or other testamentary disposition the probate of the said will or the letters of administration with the will annexed or a copy thereof respectively stamped with the seal of the Supreme Court (or such other notice as may be required by any general rules and orders made as hereinafter mentioned)

and in every such case such probate or letters of administration or copy thereof respectively stamped as aforesaid shall be sufficient evidence of such will and of its validity and contents notwithstanding the same may not have been proved in solemn form unless the party receiving such notice shall within four days after such receipt give notice that he disputes the validity of such devise or other testamentary disposition.

A verified copy of probate granted in New South Wales was held not to be sufficient proof of the will in a proceeding affecting title to real estate, Re Cunningham's Trusts (1899), 9 Q.L.J. (N.C.) 87.

30. When original will proved court may direct which party shall pay costs. 20 & 21. Vic. c. 77 s. 65. In every case in which in any such action or suit the original will shall be produced and proved it shall be lawful for the court or a judge before whom such evidence shall be given to direct by which of the parties the costs thereof shall be paid.

EVIDENCE AND DISCOVERY ACfS, 1867 TO 1962 5s.27-32 ,495

JUDGMENTS DECREES AND ORDERS

31. Copies of judgments decrees rules and orders of Supreme Court' to be ~ceived in evidenc;e if, duly certified by master prothonotary chie! clerk or deputy registrar respectively. Copies of all judgments decrees rules and orders filed or recorded in the Supreme Court of the said colony at Brisbane shall be admitted as evidence of the contents thereof' by an courts judges justices and other legal tribunals and in every judicial proceeding in the said colony without production of the originals of such documents respectively provided the copies of such orders and decrees made in the equitable jurisdiction of the said Supreme Court at Brisbane be certified under the hand of the master in equity of the said court and that such copies of all judgments decrees rules and orders made in the common law and ecclesiastical jurisdiction of the said Supreme Court at Brisbane be certified under the hand of the prothonotary or chief clerk thereof

And they shall be deemed prima facie to be so certified if they purport to be so certified. '

The functions imposed upon the Master in Equity ,and the Prothonotary by this section are now exercised 'by the Registrar of the Supreme Court. See R.S.C. (1900), Order 1, rule 1, title SUPREME COURT.

As to certified copies, see also R.S.C. (1900), Order 87, rule 13, title SUPREME COURT.

As to proof of 'judgments and lega,l proceedings of courts out of Queensland, see the Preliminary Note, ante. .

A certificate' merely stating that judgment has been recovered is not evidence under th'is section, Re Kerle (1898), 19 L.R. (N.S.W.) (B. & P.) 26.

CONVICTIONS AND ORDERS

32. Proof of conviction or acquittal. 17 & 18 Vic. c. 125 s. 25. When­ever in any proceeding whatever it may be necessary to prove the trial and conviction or acquittal of any person charged with any indictable offence it shall not· be necessary to produce the record of the conviction or acquittal of such person or a copy thereof but it shall be sufficient that it be certified under the hand of the clerk of the court or other officer having the custody of the records of the court where such conviction or acquittal took place or by the deputy of such clerk or other officer that the paper produced is a copy of the record of the indictment or informa­tion trial conviction judgment or acquittal as the case may be omitting the formal part thereof '

And it shall' be deemed prima facie to be so certified if it purport to be so certified. . ,

As to proof of a previous conviction for purposes of an offence alleged to have been committed after a previous conviction" see the Criminal Code, s. 635, title CRIMINAL LAW, Vol. 3, p. 558.

QUll!re, whether signature by a person purporting to be a "relieving" clerk is sufficient to bring a certificate wirhin,this section by virtue of the Acts Interpretation Acts, 1954 to 1962, s. 34, title ACfSOF PARLIAMENT, Vol. 1, p. 94. See Brown v. Brown (1905), 3 C.L.R. 373.

A certificate, otherwise complying wi,th this section, but oot stating the office of the, person signing it, is sufficient if it is proved aliunde that such person is one of the'persons mentioned, R. v. West (1863), 2'S.C:R. (N.S.W.) (L.) 69.

As to what constitutes "a copy of the record", see R. v. Tudor (1857)"Legge (N.S.W.) 1023. '

See fllrther, 'as to proof of conviction; 14 English a'lld' Empire Digest. (Rpl.) pp. 577-579; and as, to admissibility of convictions in evidence, see~ 22, English and Empire Digest (Rpl.) pp. 274-276. " '" . .

496 EVIDENCE Vol. 5

33. Evidence to prove a conviction or sentence. In every case civil or criminal in which it shall be necessary to prove that any person was convicted of any offence or sentenced to any punishment or pecuniary fine before or by any court or justices or was ordered by any co]lrt or justices to pay any sum of money a certificate under the hand of the officer having ordinarily the custody of the records or documents and proceedings ,showing such conviction sentence or order shall upon proof of the identity of the party be sufficient evidence of such conviction sentence or order and of the particular offence or matter in respect of which it was had or passed or made if stated in such certificate

Provided that the time and place of such conviction sentence or order shall be stated therein with the title of the court in which or the names of the justices by or before whom the same was so had or made

Provided also that a document purporting so to be shall be deemed prima facie to be such a certificate.

As to the officer "having ordinarily the custody of the records", see Brown v. Brown (1905), 3 C.L.R. 373.

Although the certificate need not be verified by affidavit (Ex parle Cramplon (1906), 6 S.R. (N.s.W.) 236), it must state ,the place of the proceedings (Ex parle Eslick (1905), 5 S.R. (N.S.W.) 470), and the time with the title of the Court or the name ·of the justice, (Ex parle Carroll (1905), 22 W.N. (N.s.W.) 55); but the provisions are only eDiabling, so 'that, if these maUers are otherwise before the Court, as, for example, by an uncontradicted statement on oath that a copy of the record before the Court is a -true copy, their absence from the certificate will not make it inadmissible, (Ex parle Barclay (1924),24 S.R. (N.S.W.) 416).

As to evidence of identity, see note to s. 19. On .the limitations of this section, cf. Hollington v. Hewthorn & Co. Ltd.,

[1943] K.B. 27, 587; [1943] 2 All E.R. 35.

34. The like as to the fact of a trial or inquiry. In every case civil or criminal in which it shall be necessary to prove that any particular cause or case or matter was tried or under inquiry in any court or before any judge or justices or justice a like certificate under the hand of the officer having ordinarily the custody of the records or documents and proceedings showing the pendency or existence of such cause or case or matter shall be taken as evidence of the fact of such trial or inquiry and of the particular nature and occasion or ground and cause thereof if stated in such certificate

Provided that the time and place of such trial or mquiry shall be stated therein with the title of the court in which all the names or name of the justices or justice by or before whom the same occurred or was had or pending

Provided also that a document purporting so to be shall be deemed prima facie to be such a certificate.

As to the officer "having ordiruarily the custody of ,the records", see Brown v. Brown (1905), 3 C.L.R. 373.

See also notes to s. 33.

35. Proof of certificate. Every such certificate or paper purporting to be a· certificate stating that the party signing the same has ordinarily the custody of the records documents or proceedings referred to therein shall be prima facie evidence of that fact and of the signature and official character of such party.

'EVIDENCE AND DISCOVERY ACfS, 1867 TO 1962 ss.33·37A 497

SHIP'S REGISTER

36. Registers of British vessels and certificates of registry admissible as prima facie evidence of their contents without proof of signature etc. 14 & 15 Vic. c. 99 s. 12. Every register of a vessel kept under any of the Acts relating to the registry of British vessels may be proved in any court of justice or before any person having by law or by consent of parties authority to hear receive and examine evidence 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 one shilling

and every such register or such copy of a register and also every certificate of registry granted under any of the Acts relating to the registry of British vessels and purporting to be signed as required by law shall be received in evidence in any court of justice in Queensland or before any person having by law or by consent of parties authority to hear receive and examine evidence as prima facie proof of all the matters contained or recited in such register when the register or such copy therepf as aforesaid is produced and of all the matters contained recited in or indorsed on such certificate of registry when the said certificate is produced

And a copy purporting to be so certified and a certificate purporting to be so signed shall be deemed prima facie to be so certified and signed respectively.

Compare the Merchant Shipping Acts 1894 to 1960, ss, 64, 695 (Imperial), title SHIPPING.

DOCUMENTARY EVIDENCE IN GENERAL

37. Documents admissible without proof of seal in England or Ireland admissible in Queensland. 14 & 15 Vic. c. 99 s. 9. Every' document which by any law now in force or hereafter to be in force is or shall be admissible in evidence of any particular in any court of justice in England or Ireland 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 same purposes in any court of justice in Queensland or before any person having in Queensland by law or by consent of parties authority to hear receive and examine evidence without proof of the seal or stamp or signature authenticating the same or 6f the judicial or official character of the person appearing to have signed the same.

See also Evidence Act, 1851, 14 & 15 Vic., c. 99, s. 11 (Imperial), p. 481, ante, and cf. the Evidence Act, 1898, 62 Vic., No. 15, s. 7, p. 521, post.

This section was applied with regard to affidavits in Re Daniels, (1904) Q.W.N. 26 and In the Will of Mowen (1930) Q.W.N. 36.

For examples of the application of tlris section, see Drew v. Drew, [1949] Q.W.N. 8 (documentary evidence of Scottish marriage), Leaven v. Leaven, [1951] Q.W.N. 12 and Vautier v. Vautier, [1953] Q.W.N. 48 (affidavits sworn in foreign countries before British vice-consuls).

See also Re Stable, [1954] Q.W.N. 54.

37 A. Powers as to oaths and notarial Acts abroad. ( 1) In this section the expression "consular officer" means a person appointed to hold or act in any of the f9110wing offices (being an office of the United Kingdom of Great Britain and Northern Ireland or of some other country which is a

498 'EVIDENCE Vol. 5

member of the Commonwealth of Nations) in a country or place outside the United Kingdom of Great Britain and Northern Ireland or; as the case may be, such other country, that is to say-

(a) 'Ambassador; (b) High Commissioner; (c) Minister; (d) Head of Mission; (e) Commissioner; (f) Charge d'Affaires; (g) Counsellor or Secretary at an Embassy, High Commissioner's

Office, Legation or other post; (h) Consul-General; (i) Consul; (j) Vice-Consul; (k) Pro-Consul; (1) Trade Commissioner; or (m) Consular Agent.

(2) 'Where any oath, affidavit, or notarial act is required for the purpose of any court or matter in Queensland, any such oath or affidavit, and any such notarial act which, if done in the United Kingdom of Great Britain and Northern Ireland, a notary public could do may, in any country or place outside the Commonwealth of Australia, be made, sworn, or done before a consular officer exercising his functions in that country or place. , '

Every such oath, affidavit, or notarial act made, sworn,' or done before any such consular officer shall be as effectual as if duly made, sworn, or done before a lawful authority in Queensland.

(3) Any document required, authorised, or permitted by any Act or law of Queensland to be attested or verified by, or sealed, or signed, or acknowledged or d.eclared before a justice of the peace of this State may, in any. country or place outside the Commonwealth of Australia, be attested, or verified 9Y, or sealed, or signed, or acknowledged or declared by or before a consular officer exercising his functions in that country or place.

Every document attested or verified by, or sealed, or signed, or acknowledged or declared before any such consular officer shall be as effectual as if duly attested, or verified by, or sealed, or sworn, or acknowledged or declared before a justic~ of the peace in Queensland.

(4) When~ any enactment in force at the passing of "TIle Evidence and Discovery Acts Amendment Act of 1960," or thereafter in force requires; authorises, or permits any notarial act to be done by, or any oath or affidavit to be made or taken or any document to be, 'sealed or signed or acknowledged or declared before, any persqn appointed to hold or act in any diplomatic or consular office of the United Kingdom of Great Britain and Northern Ireland, whether that person is in that ,enact­ment referred to as· a British ambassador, envoy, minister, charge d'affaires, secretary of embassy or legation, consul-general, consul, vice­consul, pro-consul, or consular agent, or by any other title, then the same may be done by or, as the case' may be, made, or taken, or sealed, or signed, or acknowledged or declared in any country or place outside the Commonwealth of Australia before any consular officer exercising his furictions in that country or place.

EVIDENCE AND DISCOVERY ACTS, 1867 TO 1962 ss. 37A-39 499

For the purposes of this subsection the term "enactment" includes a provision of any Order in Council, regulation, rule, by-law, or other instrument made pursuant to any Act of this State as well as any enactment of the Legislature of this State.

Inserted by Act of 1960, 9 Eliz. 2 No. 22, s. 4. Act referred to:

Evidence and Discovery Acts and Other Acts Amendment Act of 1960, 9 ELiz. 2 No. 22, which was passed on 14 November, 1960.

Compare Australian Consular Officers' Notarial Powers and Evidence Acts, 1946 to 1963, ss. 3, 4, p. 452, ante.

38. Certain documents to be evidence without proof of seal or signature of official persons. 18 & 19 Vic. c. 42. Any document purporting to have affixed impressed or subscribed .thereon or thereto the seal and signature of any British ambassador envoy minister charge d'affaires secretary. of embassy or legation consul-general consul vice-consul acting consul pro-consul or consular agent or of any Australian Consular Officer within the meaning of "The Australian Consular Officers' Notarial Powers and Evidence Act of 1946" or of any other person who is a consular officer within the meaning of section 37 A of this Act, in testimony of any oath affidavit affirmation or notarial act having been administered sworn affirmed had or done by or before him shall be deemed prima facie to be so affixed impressed or subscribed and shall accordingly be admitted in evidence without proof of any such seal and signature being the seal and signature of the person whose seal and signature the same purport to be or of the official character of such person.

As amended by Act of 1946, lOGeo. 6 No. 43, s. 5 (i), and by Act of 1960, 9 Eliz. 2 No. 22, s. 5.

Act referred to: Australian ConsuJoar Officers' Notarial Powers and Evidence Acts, 1946

to 1963, p. 451, ante. See Re Ryan Lewis & Co. Pty. Ltd. (1918), 24 C.L.R. 460.

39. Evidence of Acts of State and of judgments in any British colonial and foreign courts. 14 & 15 Vic. c. 99 s. 7. All proclamations treaties and other Acts of State of the United Kingdom or of any foreign state or British colony and all judgments decrees orders and other judicial proceedings of any court of justice in Great Britain and Ireland or of any foreign state or British colony and all affidavits pleadings and other legal documents filed· ot deposited in any such court may be proved in any

. court of justice or before any person having by law or by consent of parties authority to hear receive and examine evidence either by examined copies or by copies authenticated as hereinafter mentioned that is to say

if the document sought to be proved be a proclamation treaty or other Act of State the authenticated copy to be admissible in evidence must be sealed with the seal of the United Kingdom or other proper seal in that behalf or with the seal of the foreign state or British colony to which the original document belongs and

if the document sought to be proved be a judgment decree order or other judicial proceeding of any British foreign or colonial court or an affidavit pleading or other legal document filed or deposited in any such court the authenticated copy to be admissible fu evidence must either be sealed with the seal of the court to which the original document belongs or in the event of .such court having no seal must be signed by the

500 EVIDENCE' Vol. 5

judge or if there be more than one judge by anyone of the judges of the said court and such judge shall attach to his signature a statement in writing on the said copy that the court whereof he is a judge has no seal

but if any of the aforesaid authenticated copies shall purport to be sealed or signed as hereinbefore respectively directed the same shall respectively be admitted in evidence in every case in which the original document could have been received in evidence without any proof of the seal where a seal is necessary or of the signature or of the truth of the statement attached thereto where such signature and statement are necessary or of the judicial character of the person appearing to have made such signature and statement.

As ani.ended by Acts Citation Act of 1903, 3 Edw. 7 No. 10, s. 10, title ACTS OF PARLIAMENT, Vol. 1, p. 76.

See also the Evidence Act, 1898, 62 Vic., No. 15, ss. 5, 6, p. 522, post; State and Territorial Laws and Records Recognition Act 1901-1950, ss. 6, 7, 17 (Commonwealth).

"Act of State" has been held to include a foreign patent, Re Belt's Patent (1862), 1 Moo. P.C.C.N.S. 49.

Orders in Council applying the Extradition Act, 1870, title CRIMINAL LAW, Vol. 3, p. 787, to any foreign State are Acts of State, and as such are judicially noticed, R. Y. Macdonald (1901), 11 Q.L.J. 85.

An extradition treaty between England and a foreign country was judicially noticed in R. Y. Butler (1897), 18 L.R. (N.S.W.) (L.) 146.

The words "legal document" are not limited to documents which have come into existence in the course of a Law-suit and form part of legal proceedings. A marriage settlement may be a legal document, Permanent Trustee Co. of New South Wales Y. Fels, [1918] AC. 879.

An examined copy is one of which a person can swear either that he has compared it with the original or that he has checked i,t while the original was being read over to him. The examiner must have read the whole of the document (Nelthrop Y. Johnson, Clay. 142, pI. 259), and be able to understand it (Crawford Peerage Case (1848),2 H.L. Cas. 534, 544).

A- document. stamped "Office Copy, Supreme Court of Judicature, Companies Winding-up" was held not to be admissible because it did not purport to be sealed with the seal of the Court, English, Scottish and Australian Chartered Bank v. Brown (1897), 14 W.N. (N.S.W.) 49.

. A document stating .the registration of a foreign company and that ~t had changed its name, such document being sealed with the seal of a Court and signed by a judge who certified that it agreed with the official register, was held admissible and proof of its contents, Bowden Bros. & CO. Y. Imperial Marine and Transport Insurance Company (1905), 5 S.R. (N.S.W.) 614.

A cou.rt will not, as regards property within the jurisdiction, recognise any probate or letters of adminis.tration except those issued by the Court of the proper jurisdiction, Arnot v. Chapman (1884), 5 L.R. (N.S.W.) (Eq.) 66.

40. Certain official entries and copies evidence. Every entry or copy now kept or hereafter to be kept as of record or for public or official purposes in the office of the Home Secretary or of the Registrar-General purporting to be an entry or copy of any letters patent or deed of grant from the Crown of any land situated in the said colony to any person or persons whomsoever shall in case the letters patent or deed of grant of which the same purports to be an entry or copy shall not be produced in evidence be deemed and taken to be of the same force and effect as the original letters patent or deed of grant under the seal of the said colony duly recorded and signed by the Governor of the said colony for the time being

Certified copies thereof. and a copy of any such entry or copy kept or hereafter to be kept as of record as aforesaid of any such letters patent or deed of grant certified to bea true copy under the hand' of the said

EVIDENCE AND DISCOVERY ACTS, 1867 TO 1962 ss.39-41 501

Home Secretary or the Registrar-General for ·the time being shall upon proof made that· such certificate has been signed by the said Home Secretary or Registrar-General for the time being (and whom it shall not be necessary to prove to be such Home Secretary or Registrar-General) shall have the same force and effect for the purposes of evidence to all intents and purposes whatsoever as if the original letters patent or deeds of grant of which the copy so produced and certified shall purport to be a copy of the entry or copy as aforesaid had been produced in, evidence

Proviso as to fees. Provided that for every such copy a fee at the rate of one shilling and threepence for every folio of seventy-two words shall be charged previously to the delivery of the same, and the amount thereof shall be duly paid by the officer receiving the same into the Colonial Treasury for the public uses of the said colony and in support of the Government thereof.

It is not necessary to show that !:here is an original gr,ant and that it cannot be produced, Doe v. M'Keon (1848), Legge (N.S.W.) 475.

41. Proof of books and documents of a public nature by certified copies or extracts. 14 & 15 Vic. c. 99 s. 14. Whenever 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 and no Act exists which renders its contents provable by means of a copy any copy thereof or extract therefrom shall be admissible in evidence in any court of justice or before any person now or hereafter having by law or by consent of parties authority to hear receive and examine evidence provided it be proved to be an examined copy or extract or provided it be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted and which officer is hereby required to furnish such certified copy or extract to any person applying at a reasonable time for the same upon payment of a reasonable sum for the same not exceeding four pence for every folio of ninety words and every copy purporting to be so signed and certified shall be prima facie taken to be so signed and certified.

Compare Evidence Act, 1898, 62 Vic. No. 15, s. 8, p. 524, post. A public document must be made by a public officer for the purpose of the

public making use of it and being able to refer to it, Sturla v. Freccia (1880), 5 App. Cas. 623. The copy of proceedings in a Police Court is such a document, Brown v. Brown (1905), 3 C.L.R. 373; so too a certified copy of an entry relating to title to property in the records of a public department, Ex parte O'Keefe (1930), 30 S.R. (N.S.W.) 114.

A document made for a temporary purpose is iIlOt a public document, Mercer v. Denne, [1905] 2 Ch. 538; [1904-7] All E.R. Rep. 71; nor is an affidavit, Re Portch (1881), 7 V.L.R. (I.) 126, at p. 141; nor is 'an application sent in to a public officer by a private individual respecting a matter relating to that private individual's own interest only, such as an application to select land under Acts relating to Crown lands, Liddell v. Harpur (1874), 13 S.C.R. (N.S.W.) (L.) 129.

On !:he subject of public documeruts, see Lilley v. Pettit, [1946] 1 K.B. 401; 62 TL.R. 359; [1946] 1 All E.R. 593; in which the King's Bench Division, after examining the authorities, held that regimental records were not public documents, since they were kept, not for rhe information of the public, but for the information of the Crown: and the Executive, being confidential Crown documents which the Crown could refuse, to produce, and that they were therefore not admissible as evidence.

For what constitutes an examined copy, see note to s. 39, ante. An extract means, not the whole of the entry, but a quotation or citation from

it, or an abstract of the material portions, Jones v. Falvey (1879),5 V.L.R. (L.) 230. For further cases, see 22 English and Empire Digest (Rpl.), pp. 307 et seq.

502 EVIDENCE Vol. 5

41A. Presumptions as to documents twenty years old. Whenever any document is proved, or purports, to be not less than twenty years old, there shall be made any presumption which immediately before the date of the passing of "The Evidence and Discovery Acts and Another Act Amendment Act of 1962," would have been made in the case of a document of like character proved, or purporting, to be not less than thirty years old.

Inserted by Act No.9 of 1962, s. 5 which was passed on 12 November 1962. The court bas a discretion ,to apply the section to proceedings oommenced

before 12 November 1962, see Act of 1962, s. 1 (2). This section is virtually a transcript of the Evidence Act, 1938, s. 4 (Imperial),

for which see 9 Halsbury's Statutes of England, 2nd 00., p. 626. The presumptions <referred to are those made in the _case of ancient documents. Ancient documents prove themselves; that is, they are presumed to have been

duly executed. This rule, however, applies only to those coming from proper custody; that is from any custody consistent with their genuineness and legitimate origin, in which they might reasonably, be expected to be found, Meath (Bishop) v. Winchester (Mayor) (1836),4 C. & F. 445; 6 E.R. 125.

The presumption that a document was made on the date which it bears applies also to ancien<t documents, Anderson v. Weston (1840), 9 L.J.C.P. 194; 133 E.R. 117. -

See -further as to ancient documents, Oross on Evidence, 2nd ed., p. 454.

42. Certain documents to be received in evidence without proof of signature or seal. 8 & 9 Vic. c. 113 s. 1. Whenever by any Act now in force or hereafter to be in force any certificate or official or public document or document or proceeding of any corporation or joint stock or other company or any certified- copy of any document or by-law or entry in any registry or other book or of any other proceeding shall be receivable in evidence of any particulars in any court of justice or before any legal tribunal or before either chamber of the Legisla­ture of the said colony or any committee thereof or in any judicial proceeding the same shall respectively be admitted in evidence pro­vided they respectively are or be sealed or impressed with a stamp and signed as directed by the respective Acts made or to be hereafter made and they shall prima facie be deemed to be so sealed impressed or signed if they purport so to be _and without any proof of the seal or stamp where a seal or stamp is necessary or of the signature or of the official character of the persons appearing to have signed the same

_ and without any further proof thereof in every case, in which the original record or document could have been received in evidence.

Compare Evidence Act, 1898, s. 11, p. 525, post. With respect to companies, see also Companies Acts, 1961 to 1964, title

COMPANIES, Vol. 2, ss. 92 (certificate of shares), -151 (register of members), 148 (minutes), 284 (books and papers in winding-up), 346 (proof of local registration of foreign companies), and Life Assurance Companies Acts, 1901 to 1962, s. 49, (documents deposited with the Registrar), title INSURANCE.

For what constitutes a public document, see notes ro s. 41. It is not necessary for the party tendering a certificate to prove that it is

in 'the form prescribed by the Act by which it is made evidence, but it is open to the other party to show that it is not in such form, Ex parte Rigby (1905), 5 S.R. (N.S.W.) 317.

Where original certificates of marriage were put in in- evidence, but certified copies of such certificates were also put in, it was 'held that certain technical defects as t'o the proof of the original certificates were immaterial, as the certified copies were 'by statute made evidence of the fact of mar.nage, R. v. Reid (1896), 22 V.L.R. 395. . ' -

EVIDENCE AND DISCOVERY ACTS, 1~67 TO 1962 ss. 41A-42B 503

42A. Interpretation and savings. (1) In section 42Band 42c of this Act-

(a) "Document" includes, books, maps, plans, drawings and photographs;

(b) "Statement" includes any representation of fact, whether made in words or otherwise; ,

(c) "Proceedings" includes arbitrations and references; and "court" shall be construed accordingly.

(2) Nothing in sections 42B or 42c of this Act shall prejudice the admissibility of any evidence which would,apart from the provisions of those sections, be admissible.

Inserted by Act No.9 of 1962, s.6. The court has a discretion to apply this seotion to proceedings commenced

before 12 November 1962, the date of commencement of the Act of 1962. See ibid., s. 1 (2).

42B. Admissibility of documentary evidence as to facts in issue. ( 1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say:-

(a) If the maker of the statement either-(i) had personal knowledge of the matters dealt with by the

statement; or (ii) where the document in question is or forms part of a

record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the per­formance of a duty to record information; and

(b) If the maker of the statement is called as a'witnessin the proceedings: .

Provided that the condition that the maker of the statement shall be called as a witness need not be' satisfied if 'he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is out of the State and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success, or where no party to the proceedings who would have the right to cross-examine him requires him to be called as a witness.

(2) In any civil proceedings, the court may at any stage of the proceedings order that such a statement as is mentioned in subsection ( 1) of this section shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence-

(a) notwithstanding that the statement is tendered by the party calling the maker of, the statement;

(b) notwithstanding that the maker of the statement is available but is not called as a witness;

(c) notwithstanding that the original document is lost or mislaid or destroyed, or is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as

, may be specified in the, order or as the court may approve;' as the case may be.

504 EVIDENCE Vol. 5

(3) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognised by him in writing as one for the accuracy of which he is responsible.

( 4) For the purpose of geciging whether or not a statement is admissible as evidence by virtue of the foregoing provisions, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other cir­cumstances, and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner, and where the proceedings are with a jury, the court may in its discretion reject the statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.

Inserted by Act No.9 of 1962, s. 6. The court has a discretion to apply this section to proceedings commenced

before 12 November 1962, the date of commencement of the. Act of 1962. See ibid., s. 1 (2).

This section is very similar to the Evidence Act, 1938, s. 1 (Imperial), for which see 9 Halsbury's Statutes of England, 2nd ed., p. 626.

Generally, see Cross on Evidence, 2nd ed., pp. 483 et seq. As to subsection (1), see Barkway v. South Wales Transport Co. Ltd., [1949]

1 KB. 54; [1948] 2 AIl E.R. 460 (reversed on another point [1950] A.C. 185; [1950] 1 All E.R. 392), but note the points of distinction between this subsection and the English subsection.

It has been held that a "statement" includesa:: statement·of opiruon-,- Warner v. Women's Hospital, [1954] V.L.R. 410.

See also Mericka v. Mericka, [1954] S.A.S.R. 74; Tobias v. Allen, [1957] V.L.R.221.

"Reasonably practical to secure his attendance", see Union Steamship Co. of New Zealand v. Wenlock, [1959] N.Z.L.R. 173.

Subsection (2) (c) cures the omission which proved fatal iIll Bowskill v. Dawson, [1954] 1 Q.B. 288 (reversed·on another point [1955] 1 Q.B. 13) by providing specifically for loss, etc., of the original.

The order Teferred to in subseotion (2) may be ·niade in chambers before trial, Friend v. Wallman, [1946] KB. 493; [1946] 2 All E.R. 237.

As to subsection (3), see Barkway v. South Wales Transport Co. Ltd., supra. See also Re Powe Deed., [1955] 3 All E.R. 448; [1956] p. 110, where .a note

dictated, checked and amended in writing hy a witness, but not initialled or signed by rum was held to have been "made or produced" by him, within the meaning of subsection (3).

The section, like £ts En.glish counterpart, refers only to civil proceedings. Thus regimental records have been rejected in a prosecution (Lilley v. Pettit, [1946] KB. 401), but ·admitted in affiliation proceedings (Andrews v. Cordiner, [1947] KB. 655).

42c •. Weight to be attached to evidence. (1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by section 42B of this Act, 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 to the question whether or not the· statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.

EVIDENCE AND DISCOVERY ACTS, 1867 TO 1962 ss.428046 505

(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 section 42B of this Act shall not be treated' as corroboration of evidence given by the maker of the statement.

Inserted by Act No.9 of 1962, s. 6. The couI't has a discretion to apply this section to' proceedings commenced

before 12 November 1962, the date of commencement of the Act of 1962, See ibid., s. 1 (2).

This section is virtually identical with the Evidence Act, 1938, s. 2 (Imperial) for which see 9 Halsbury's Statutes of England, 2nd ed., p. 626.

Subsection (2): Semble, Wiedemann v. Walpole, [1891] 2 Q.B. 534 would be decided in the same way today, but the letters would nevertheless be admissible evidence of the facts stated, ,though not corroborative of the p~ailJJtiff's testimony.

SPEECHES OR ADDRESSES

43. Speeches to the jury. 17 & 18 Vic. c. 125 s. 18. Upon the trial of any civil cause the addresses to the court or jury shall be regulated as follows-the party who begins or his counsel shall be allowed in the event of his opponent not announcing at the close of the case of the party who begins his intention to adduce evidence to address the court or jury a second time at the close of such case for the 'purpose of summing up the evidence

and the party on the other side or his counsel shall be allowed to open the case and also to sum up the evidence (if any)

and the right to reply shall be the same as at present. As to addresses at a criminal trial, see Criminal Code, s. 619, title CRIMINAL

LAW, Vol. 3, p. 540.

44. (Repealed.) Repealed by The Criminal Code Act, 1899, 63 Vic. No. 9,s. 3, title CRIMINAL

LAW.

STAMP

45. Instruments admissible as evidence in criminal cases though not properly stamped. 17 & 18 Vic. c. 83 s. 27. Every instrument liable to stamp duty shall be admitted in evidence in any criminal proceeding although it may not have the stamp required by law impressed thereon or affixed thereto.

See also Stamp Acts, 1894 to 1963, S. 4A, title STAMP DUTIES.

46. Provision as to unstamped documents at any trial not, criminal. 17 & 18 Vic. c. 125 s. 28. Upon the production of any document as evidence at the trial of any cause not being a criminal proceeding the officer ,of the court whose duty it is to read such document shall call the attention of the judge to any omission or insufficiency of the stamp and the document if unstamped or not sufficiently stamped shall not be received in evidence until the whole or the deficiency of the stamp duty shall have been paid~

As amended by Stamp Duties Act ArnendmenJt Act of 1890. (itself repealed by Stamp Act, 1894, ,so 81, title STAMP DUTIES). '

See also the Stamp Acts, 1894 to 1963, S. 4A, title STAMP DUTIES. A new tri'al is not to be granted by reason of the ruling of a judge that a

stamp, on a document is sufficient or not required, Common Law Practice Acts; 1867 to 1940, s. 46, title PRACfICE. '

506 EVIDENCE" Vol. 5

A judge is entitled to reject an unstamped document even though this objection is not raised to its admission," unless the duty is" paid under:" this section" Casey v. Donnelly (1899), 20 L.R. (N.S.W.) (L.) 211. But a new <trial will not be .refused on this ground, where the rejection of the document may have bee:n on another ground which cannot be sustained, Ralston v. South Grela Colliery Co. (1913), 13 S.R. (N.S.W.) 6. " "

47. Officers of the court to receive and account for the duty and fi.ne~ 17 & 18 Vic. c. 125 s. 9. Such officer of the court shall upon payment to him of such stamp duty and fines give a receipt for the amount of the same and thereupon such document shall be admissible in evidence saving all just exceptions on other grounds and an entry of the fact of such payment and of the amount thereof shall be made in a book kept by such officer who shall at the end of each sittings or assizes duly make a return to the commissioners of any moneys which he has so received byway of duty or fine distinguishing between such moneys and stating the name of the cause and of the parties from whom he received such moneys and the date and description of the document for the purpose of identifying the same and he shall pay over the said moneys to the commissioners

And such officers shall for the purposes in this Act mentioned be deemed public accountants under the provisions of The Audit Act for the time being and the commissioners shall upon request and production of the receipt hereinbefore mentioned cause such document to be stamped with the proper stamp in respect of the sum so paid as aforesaid.

Acts referred to: The reference in the sectional note to stat. 17 &:18 Vic. c. 125 (Common

Law Procedure Act, 1854 (Imperial», should be to s. 29 of that Act. Audit Acts, 1874 to 1963, see title AUDIT, Vol. 1, p. 648.

48. No deed affecting lands in the colony to require stamp. No con­veyance or other instrument affecting real estate within this colony or power of attorney authorising the execution or registering of any such conveyance or other instrument executed at any place out of this colony shall be inadmissible in evidence in this colony by reason of the same not being stamped according to the stamp laws in force at the place where such conveyance or other instrument or power of attorney was executed.

INTERROGATION OF PARTIES

49. (Repealed.) Repealed by the Statute Law Revision Act of 1908, 8 Edw. 7 No. 18, s. 2,

title ACTS OF PARLIAMENT, Vol. 1, p. 109.

50. Affidavits by party proposing to interrogate and his attorney. 17 & 18 Vic. c. 125 s. 52. The application for such order shall be made upon an affidavit of the party proposing to interrogate and his attorney or agent or in the case of a body corporate of their attorney or agent stating that the deponents or deponent believe or ~lieves that the party proposing to interrogate whether plaintiff or defendant will derive material benefit in the cause from the discovery which he seeks that there is a good cause of action or defence upon the merits and if the application be made" on the part of the defendant that the discovery is not sought for the purpose of delay

EVIDENCE AND DISCOVERY ACTS, 1867 TO 1962 ss.46·53 507

Provided that where it shall happen from unavoidable circumstances that the plaintiff or -defendant cannot join in such affidavit the court or judge may if they or he think fit upon affidavit of such circumstances by -which the party is prevented from so joining therein allow and order that the interrogatories may be delivered without such affidavit.

The . order referred to in the first line is the order for leave to admiDJister interrogatories required by the repealed s. 49.

See now R.S.C. (1900), Order 35, rules 1,4, II, title SUPREME COURT.

51. Oral examination of parties when to be allowed. 17 &. 18 Vic. c. 125 s. 53. In case of omission without just cause to answer sufficiently such written interrogatories it shall be lawful for the court or a judge at their or his discretion to direct an oral examination of the interrogated party as to such points as they or he may direct before a judge or commissioner and the court or judge may by such rule or order or any subsequent rule or order command the attendance of such party or parties before the person appointed to take such examination for the purpose of being orally examined as aforesaid or the production of any writings or other documents to be mentioned in such rule or order and may impose therein such tenDs as to such examination and the costs of the application and of the proceedings thereon and otherwise as to such court or judge shall seem just.

See now R.S.C. (1900), Order 35, rule 9, tide SUPREME COURT.·

52. Proceedings upon such rule or order. 17 & 18 Vic. c. 125 s. 54. Such rule or order shall have the same force and effect and may be proceeded upon in like manner as any rule or order made' for the examination of persons as witnesses.

COMMISSIONS FOR EXAMINING WITNESSES

53. Order or commission to examine witnesses. 1 Wm. 4 c. 22 s. 4. It shall be lawful for the Supreme Court or any judge thereof in any action or suit depending in such Supreme Court or in any district or other inferior court upon the application of any of the parties to such action or suit to order the examination on oath upon interrogatories or otherwise before some person to be named in such order of any witnesses within Queensland or its dependencies or to order a commission to issue for the examination of witnesses on oath at any place or places out of Queensland and its dependencies by interrogatories or otherwise and by the same or any subsequent order or orders to give all such directions touching the time place and manner of such examination as well within Queensland and its dependencies as without and all other matters and circumstances connected with such examinations as may appear reasonable and just

and it shall be lawful for every person authorised to take the examination of witnesses by any rule order' writ or commission made or issued in pursuance of this Act and he is hereby authorised and required to take all such examinations.

See ·now R.S.C. (1900), Order 40, rules 8 et seq., title SUPREME COURT; District Courts Acts, 1958 to 1963, s. 110, title DISTRICT COURTS; Magistrates Courts Rules, 1960, rule 185, ·title MAGISTRATES COURTS. And see ss. 62, 70,' 71 of this Act, post; Evidence by Commission Acts, 1859 and 1885 (Imperial), pp. 529 and 531, post; Foreign Tribunals Evidence Act, 1856 (Imperial), p. 537, post. .

508 EVIDENCE 'Vol. 5

This section and ss. 54-57, post, are applied for certain purposes under the Harbours Acts, 1955 to 1964, title HARBOURS, by s. 34 (2) thereof, and ,for certain purposes under the Local Governmen1 Acts,1936 to 1963 (title LOCAL AUTHORITIES) by s. 9 (5) thereof.

Where ·the applicant shows t!hat a witness is out of the jUrisdiction, that his evidence is material, that the court has no power to enforce his 'attendance,' and that ,the applican1t cannot procure his attendance, the court is, as a general rule, bound to make an order, Willis v. Trequair (1906), 3 C.L.R. 912; Williams v. Mutual Life Association of Australia (1904), 4 S.R. (N.S.W.) 677; National Mutual Life Association of Australasia Ltd. v. Australian Widows Fund Life Assurance Society Ltd., [1910] V.L.R. 411, per Hood, J.; Kingston v. Reid & Co. Ltd., [1902] Q.W.N. 36. The affidavit in support should state generally wh3Jt 'the witness is going to prove and not merely that he is a material witness, Bleasby v. Romney (1898), 24 V.L.R. 201. The onus of showin'g that the applicant cannot procure the attendance of il:he witness is upon the 'applicant, Godfrey v. Godfrey (1906),23 W.N. (N.S.w.) 217.

It is the duty of the court or judge 10 consider what is conducive to the due administration' of justice. Proof of a legal defem:e ought, in the absence of special circumstances, to ,be regarded as so conducive, De Saxe v. Schlesinger (1881),7 V.L.R. (L.) 127.

It appears that it is not essential for an applicant to show that he cannot safely proceed without the evidence sought to be obtained. See Ex parte McDonald (1904),2.1 W.N. (N.S.W.) 97.

It appears that an order should not be refused on the ground that it would be an advantage to have ,the witness before the jury for cross-ex'aminatioD'. See Bolton v. Keinzlie (1926), 43 W.N. (N.S.W.) 30.

Provided tihere is a real question to be tried, ,the court cannot, in deter­mining whether to make an order, take into consideration whether the plaintiff or defendant is likely to succeed, Willis v. Trequair (1906), 3 c.L.R. 912.

A court will not refrain from making an order under this section in all cases to which s. 16 of the Commonwealth Service and Execution of Process Act 1901-1958, title PRACTICE, is applicable, Rickard v. Sutherland (1907), 24 W.N. (N.S.W.) 153; Bolton v. Keinzlie (1926), 43 W.N. (N.S.W.) 30; Burnside v. Melbourne Fire Office Ltd. (No.2), [1918] V.L.R. 639. A commission was, however, refused on this ground in National Mutual Life Association of Australasia Ltd. v. Australian Widows Fund Life Assurance Society Ltd., [1910] V.L.R. 411:.

An order 'under this sectiOlli may be made subject to conditions, Huth Gillespie & Co. v. Watt (1922), 22 S.R. (N.S.W.) 635 (condition thaJt defendant give security fOT amount claimed).

An order may be made even before any pleadmgs have been delivered, Williams v. Australian Mutual Provident Society (1905), 21 W.N. (N.S.W.) 249. Under a similar section it was held that there was no jurisdiction to make an order for the oral examination de bene esse of witnesses after judgment was entered and pending an application for a new trial, Wilkie v. Melbourne ,Motor-Bus Co. Ltd., [1916] V.L.R. 211. '

As to the ·terms of a commission addressed to a court of C<H>rdinate juris­diction in another dominion, see Re a Commission (1886), 2 Q.L.J. 137; Re Turnbull (1886), 2 Q.L.J. 131.

In the long order for a commission to examine witnesses obtained by a defend3llJt, the plaintiff not joining in the application, words were directed to be inserted at the plaintiff's request, entitling him, if he wished, to use at the trial the evidence taken on commission, Hele v. McIlwraith, McEacharn & Co. Ltd. (1895), 2 A.L.R. 40.

In D. v. S. (othenvise known as D.), [1957] Q.W.N. 25, evidence tha't had beeIlJ taken abroad in pursuance of a letter of ,reques1. (instead of under a coinmissiOiIl as prescribed by the Matrimonial Causes Jurisdiction Act of 1864, s. 42) was admitted, the defendant having Iain by on the application for the issue of the letter and raised no objection then to such procedure.

54. Witnesses may be ordered to attend for examination. 1 Wm. 4 c. 22 s. 5. When any rule or order shall be made for the examination of witnesses Within, Queensland or its dependencies by authority of this Act it shall be lawful for the Supreme Court or any judge thereof

· EVIDENCE AND DISCOVERY ACTS, 1867 TO 1962 ss.53·57 509

in and by the first rule ·or order to be made in the matter or any subsequent rule or order to command the attendance of any person to be named in such rule or order for the purpose of being ·examined or the production of any writings or other documents to be mentioned in such rule or order and to direct the attendance of any such person at his own place of abode or elsewhere if necessary or convenient so to do

and the wilful disobedience of any such rule or order shill' be deemed a contempt of the Supreme Court and proceedings may be there­upon had by attachment (the judge's order being made a rule of court before or at the time of the application for an attachment) if in addi­tion to the service of the rule or order an appointment of the time and place of attendance in obedience thereto signed by the person or persons appointed to take the examination or by one or more of such persons shall be also served togeth~r . with or after the service of such rule or order .

Provided always that every person whose attendance shall be so required shill be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial Provided also that no person shall be compelled to produce under any such rule or order any writing or other document that he would not be compellable to produce at the trial of the cause.

See now R.S.C. (1900), Order 40, rule 17, tide SUPREME COURT; District Courts . Acts, 1958 to 1963, s. 110, .title DISTRICT COURTS; Magistrates Courts Rules, 1960, rule 185, title MAGISTRATES COURTS.

The provisions of this Act il'elating to proceedings on an order foil' a commission are applied to orders for examina·tion of persons refusing to make affidavits, by .the Common Law Practice Acts, 1867 to 1940, s. 41, title PRACTICE.

As to conduct money, see Re A. H. Prentice Ltd., [1930] Q.W.N. 11.

EXAMINATION OF PRISONERS

55. Examination of prisoners. 1 Wm. 4 c. 22 s. 6. It shill be lawful for any sheriff gaoler or other officer having the custody of any prisoner to take such prisoner for examination under the authority of this Act by virtue of a writ of habeas corpus to be issued for that purpose which writ shill and may be issued by the Supreme Court or a judge thereof under such circumstances and in such manner as such court or judge may now by law issue the writ commonly called a writ of habeas corpus ad testificandum.

With respect to the wri·t of habeas corpus ad testificandum, see Habeas Corpus Act, 1804 (44 Goo. 3, c. 102), 6 Halsbury's Statutes of England, 2nd ed., p. 95.

For an alternative method of procuring the evidence of Persons in prison, see Prisons Acts, 1958 to 1964, s; 31, title PRISONS.

EXAMiNATION AND DEPOSITIONS OF WITNESSES

56. Examinations of witnesses to be taken npon oath. 1 Wm. 4 c. 22 s. 7. It shall be lawful for ill and every person authorised to take the examination of witnesses by any rule order writ or commission made or issued in pursuance of this Act and he and they are hereby authorised and required to take ill such examinations upon the oath of the witnesses.

Compail'e the Acts Interpretation Acts, 1954 to 1962, s. 27, tide ACTS OF PARLIAMENT, Vol. 1, p. 90.

57. Persons appointed for taking examinations to report to the court upon the conduct or absence of witnesses if necessary. 1 Wm. 4 c. 22 s. 8. It shall and may be lawful for the master prothonotary or any other

510 EVIDENCE Vol. 5

persons to be named in any such rule or order as aforesaid for taking any examination in pursuance thereof and he and they are hereby required . to make if need be a special report to the court touching such examination and the conduct or absence of any witness or other person thereon or relating thereto and the court is hereby authorised to institute such proceedings and make such order and orders upon such report as justice may require and as may be instituted and made in any case of contempt of the court.

Compare R.S.C. (1900), Order 40, rule 21, title SUPREME COURT. It appears that the rules of practice to be followed on taking the evidence

are the same as those applicable on .a hearing in Court, and iliat a plaintiff is, therefore, not entitled to re-open examination of his wimesses after the opening of the examina,tion of defendant's witnesses, Bell v. Clarke (1884), 10 V.L.R. (Eq.) 283.

Where <the order prov,ided that the depositions of 'the wi,tness should be signed by him, and this was not done, it was held that such provision was merely diuectory, and that ,the proper time for taking such an objection was when the depositions were tendered on the taking of evidence and not at the hearing, Hatt v. Hatt (1877), 3 V.L.R. (Eq.) 227.

58. Costs of the order for examination may be made costs in the cause. 1 Wm. 4 c. 22 s. 9. The costs of every rule or order to be made for the ,examination of witnesses under any commission or otherwise by virtue of this Act and of the proceedings thereupon shall (except in the case hereinbefore provided for) be costs in the cause unless otherwise directed either by the' judge making such rule or order or by the judge before whom the cause may be tried or by the court. '

Where evidence taken under commission related mainly to the matters on which the unsuccessful party succeeded, he was held entitled to his whole costs in Tespec~ of the commissiOllJ, Urquhart v. Macpherson (1877), 3 V.LR. (L.) 159.

Where a commission, in which both plaintiff and defendant joined, lapsed through ignorance of the law of the country in which the examination was to take place, an OTder for a new commission was made on application' 'by the plaintiff, on his paying ,the costs of :the abortive commission and undertakirig to answer damages to t)1e defendant in certain circumstances, Wolfe v. Hart (1879), 5 V.L.R. (Eq.) 52.

59. Depositions not to be read without proof of absence death or sickness. 1 Wm. 4 c. 22 s. 10. No examination or deposition to be taken by virtue of this Act shall be read in evidence without the consent of the party against whom the same may be offered unless it shall appear to the satisfaction of the court or person having by law or consent of parties authority to hear receive and examine evidence that the examinant or deponent is such party or is beyond the jurisdiction of the Supreme Court or dead or unable from permanent sickness or other permanent infirmity to attend in all or any of which cases the examinations and depositions certified under the hand of the commissioners master prothonotary or other person taking the same shall and may without proof lof the signature to such certificate be received and read in evidence saving all just exceptions.

eoinpare R.S.C. (1900), Order 40, rule 22, title SUPREME COURT; District Courts l-\cts, 1958 to 1963, s. 110, title DISTRICT COURTS; Magistrates Courts Rules, 11960, rule 185, title MAGISTRATES COURTS. .

I 60. Affidavits taken under this Act may be used in courts in the colony. Provid~d that where any examination taken under the order of any judge for that purpose shall be offered in evidence the same may be read ~ithout proof of the examinant being beyond the jurisdiction of

I

I I

EVIDENCE AND DISCOVERY ACTS, 1867 TO 1962 85.57-67 511

the court or unable to attend the trial and where such examination shall appear to be certified under the hand of the person appointed or authorised to take the same no proof shall be necessary of the signature of such person

Provided nevertheless that where it shall be made to appear that in fact the examinant is within the jurisdiction and able to attend as aforesaid then such examination shall be rejected.

61. Such examinations may be read without proof. Affidavits and affirmations duly taken under this Act shall and may be received read and made use of in and before any court of law or equity or other judicature whatever in the colony· of Queensland and the judges and officers thereof in or in relation to any action suit cause matter or proceeding in or before any such court or judicature in like manner and shall be of the same force and effect as affidavits and affirmations taken in or before such court or judicature or by any person duly commis­sioned or authorised by such court or judicature to take such affidavits or affirmations and shall be filed and dealt with accordingly.

62. Provision for examining witnesses de bene esse or on commission. In all cases whether at law or in equity or in any ecclesiastical pro­ceeding where any witness shall be beyond seas or at a greater distance

. than two hundred miles from the intended place of trial or ,shall from age or infirmity be unable to attend the trial or where from either of such last-mentioned causes or from his or her being about to depart beyond sea or to some place beyond the said distance of two hundred miles the testimony of any such witness shall be in danger of being lost it shall be lawful for any judge to grant a commission or make an order at any stage of the cause for the examination of such witness either viva voce or upon interrogatories as any judge shall think fit to direct and before such person or persons or such commissioner or other officer of the court as he shall for, that purpose appoint and every such examination being duly taken and returned shall be allowed and read' as evidence at the trial or hearing accordingly.

See also s. 53, ante, and ss .. 70, 71, post; R.S.C. (1900), Order 40, rule8 8 et seq., title SUPREME COURT; Magistr,ates Courts Rules, 1960, rule 185, title MAGISTRATES COURTS; District Courts Acts, 1958 to 1963, s. 110, title DIS­TRICT COURTS, Vol. 4, p. 497.

EVIDENCE IN CRIMINAL CASES

63. Commissions in criminal cases. The like commission may be issued or order made under the section last preceding and under the like circumstances in any criminal case if on the application or by and with the consent of the Attorney-General or the Crown Prosecutor as well as the prisoner but not otherwise.

The word "if' in the third line appears to be superfluous.

64. ,(Repealed.) Repealed by ,the Criminal Law Amendment Act of 1894, 58 Vic. No. 23, s. 2,

. title CRIMINAL LAW, Vol. 3.

65-66. (Repealed.) Repealed by the JUStiCe8 Act of 1886, s. 2, title JUSTICES.

67. Depositions of prisoners' witnesses dying before trial. Attendance of witnesses for prisoner. In every case where any witness who shall have been called and examined before the justice or justices by and

512 EVIDENCE Vol. S

on behalf of a party committed or held to bail shall happen to die before the trial and in cases in which the witness shall be so' ill as nat ' to be able to travel and in all cases in which the justices who committed the prisoner or held him to bail shall have certified before such com­mittal or holding to bail that the evidence of the ,witness is material and that he is in their belief willing to attend the trial but will be unable to bear the expense of attendance the deposition of such witness may be read in evidence to the jury in the prisoner's defence if the party on trial shall so require

Provided that where any witness has in due time before the trial been subprenaed by the Crown such certificate of such justices shall not render the deposition admissible.

See also Justices Acts, 1886 to 1964, s. 111, title JUSTICES; Criminal Law Amendment Act, 1892, 56 Vic. No.3, s. 4, title CRIMINAL LAW, Vol. 3:

For the right of ,a person committed for trial to a copy of the depositions and to inspect depositions, see the Criminal Code, ss. 705, 706, title CRIMINAL LAW, Vol. 3.

Where a witness was in an advanced, state of' pregnancy, and medical evidence showed that her attendance in the witness-box would, in the particular circumstances of the case, very likely be attended wi·th highly injurious results, the Court would not admit her evidence taken on commisSlion, Fisher v. Fisher (1877), 3 V.L.R. (I.) 64.

The depositions of a medical witness, who was absent from .the trial of a prisoner on account of having gone to another city for tbe benefit of his health, were held admissible in evidence as 'being those of a witness too ill to travel, R. v. Penn (1871),2 S.C.R. 177.

It is not necessary to prove that the deposition was 'l"ead over to the deponent before he signed it. See R. v. Branscombe (1921), 21 S.R. (N.S.W.) 363.

A deposition otherwise admissible under this section is not inadmissible merely because it does not contain'some statements made by the witness, Attorney-General v. Jackson (1906),3 C.L.R. 730.

All questions of fact relevant to the admissibility of a deposition are for the judge, Attorney-General v. Jackson, supra. As to how far his dedsion is reviewable on appeal, see ibid.

68. Witnesses for prisoner or defendant to be sworn. 1 Anne s. 2 c. 9 s. 3. All and every person and persons who shall be produced or appear as a witness or witnesses on the behalf of the prisoner or defendant upon any trial for treason or felony or any indictable offence or offence punishable on summary conviction or other offence whatsoever or upon the examination before justices of a prisoner or defendant charged with any indictable offence whatsoever before he or she be admitted to depose or give any manner of -evidence shall first .take an oath to depose the truth the whole truth and nothing but the truth in such manner as the witnesses for the Que~n are by law obliged to do.

A provision for the punishment of perjury W'!S repealed by the Criminal Code Act, 1899, s. 3, title CRIMINAL LAW, Vol. 3.

For form and manner of taking of witnesses' oaths in criminal cases, see the Oaths Acts, 1867 to 1960, ss. 25, 33, title OATHS. It appears th'at an oath in the form "I promise to tell the truth and nothing but the truth" is not sufficient. See R. v. Smith (1906), 6 S.R. (N.S.W.) 85.

As to proceedings before justices, see the Justices Acts, 1886 to 1964, s. 73, title' JUSTICES.

Children may, in certain circumstances, give evidence not on oath in proceed~ ings for offences'under the State'Children Acts, 1911 to 1955, s. 74 (2) and under Children's Protection Acts, 1896 to 1945, s. 7, title CHILDREN, Vol..4.

69. (Repealed.) Repealed by the Justices Act of 1886, s. 2, title JUSTICES.

EVIDENCE AND DISCOVERY ACfS, 1867 TO 1962 ss.67-72 513

EXAMINATION .OF PARTIES

70. Examination of parties de bene esse or under. commISSIOD. In all cases in which any person not being a party to the suit action or pro­ceeding may now be examined as a witness de bene esse or under a commission it shall be lawful for the court or a judge to order or permit any party to the suit action or proceeding to be so examined on such terms in all respects as the court or judge may think reasonable and every examination thereupon taken if the same would have been admissible in the case of an ordinary witness may be read in evidence at the trial or hearing accordingly.

The sectional note to s. 72 was ,transposed to s: 70, that to s. 70 was transposed to s. 71, and that to s. 71 was transposed to s. 72, by the Acts Citation Act of 1903, 3 Edw. 7 No. 10, s. 10, title ACfS OF PARLIAMENT, Vol. 1, p. 76.

See. also ss. 53, 62.

71. Proviso. Provided that no de bene esse examination shall be allowed under the last preceding clause on the ground of intended departure from the colony or to remote parts within the same unless it be shown to the satisfaction of the court or judge that such departure is in fact urgently required by unavoidable circumstances or some ,unexpected emergency and that the examination is not sought in order to avoid cross-examination before the court or a jury.

As to transposition of sectional note, see n:ote to s. 70.

DISCOVERY AND INSPECTION

72. Discovery of documents. Upon the application of either party to any cause or other civil proceeding upon an affidavit by such party or his attorney of his belief that any document to the production of which he is entitled for the purpose of discovery or otherwise is in the possession or power of the opposite party it shall be lawful for the court or judge to' order that the party against whom such application is made or if such party is a body corporate that some officer to be named of such body corporate shall answer on affidavit stating what documents he or they has or have in his or their possession or power relating to the matters in dispute or what he knows as to the custody they or any of them are in and whether he or they objects or object (and if so on what grounds) to the production of such as are in his or their possession or power and upon such affidavit being made the court or judge may make such further order therein as shall be just.

As to transposition of sectional note, see note to s. 70. See also R.S.C. (1900), Order 35, rules 10, 11, title SUPREME COURT,

which also apply to District Courts by virtue of the District Courts Acts, 1958 to 1963, s. 188, title DISTRICf COURTS, Vol.' 4. See also Magistrates Courts Rules, 1960, rules 159, 160, title MAGISTRATES COURTS.

As to whether discovery may be ordered agai'nst the Commonwealth in an action under Part IX of the Judiciary Act 1903-1960"'(Commonwealth), see Common­wealth v. Baume (1905), 2 C.L.R. 405. See also COJ!1monwealth v. Miller (1910), 10 C.L.R. 742. .

As to whether the plaintiff is entitled to discovery in a civil action for penalties, see R. v. Associated Northern Collieries (1910), 11 C.L.R. 738. .

As to the stage of the action at which a party is entitled to discovery under this section, see Macintosh v. Dun (1904), 5 S.R. (N.S.W.) 99 (held entitled at any time); Sunday Times Newspaper Co. Ltd. v. Sun Newspaper Co. Ltd. (1919), 36 W.N. (N.S.W.) 72 (not generally granted before issue joined); Witzig v. Dizick (1928),46 W.N. (N.S.W.) 14 (refused prior to plea). For an instance of an order for discovery before delivery of statement of claim, see Brydon v. Archibald, [1938] Q.W.N. 5. See also cases cited therein and cf. Ramsay v. Halloran, [1902] Q.W.N. 87. 19

514 EVIDENCE Vol. 5

A party cannot be compelled to consent to an order for discovery being made; McLeod v. Metayer (1901), 18 W.N. (N.S.W.) 5.. .

A discovery order will be refused where the only object of a suit is to obtain forfeiture of land, but it will not be refused merely on this ground where other issues

. are also raised, Brown v. Bulga Sawmills Ltd. (1915), 32 W.N. (N.S.W.) 55.

An order may be made on a party to state what he knows as to the custody of documents but not to state whether documents were ever in his possession and to give particulars of them, Pendlebury v. O'Neill (1911), 11 S.R. (N.S.W.) 188.

The affidavit 'Of discovery cannot be ordered to be made by a specified representative of a party, Spicer v. International Paper Co. of New York (1904),21 W.N. (N.S.W.) 184.

An affidavit of discovery stating that a certain document relates solely to the case of the party giving discovery and contains nothing cutting it down or sUPP'Orting the case of the other party, is not conclusive where a reasonable probability is established that the statement in the affidavit is incorrect, Smith's Weekly Publishing Co. Ltd. v. Sunday Times Newspaper Co. Ltd. (1923), 31 C.L.R. 552. See also Lauzanne v. Resch (1925),.42 W.N. ·CN.S.W.) 149; Brown v. Bulga Sawmills Ltd. (1915), 32 W.N. (N.s.W.) 55.

See generally, as to this section, Smith's Weekly Publishing Co. Ltd. v. Sunday rimes Newspaper Co. Ltd., supra.

73. Orders for inspection of documents. Whenever any action or other legal proceeding shall henceforth be pending in the Supreme Court such court and each of the judges thereof may respectively on applica­tion made for such purpose by either of the litigants compel the opposite party to allow the party making the application to inspect all documents in the custody or under the control of such opposite party relating to such action or other legal proceeding and if necessary to take examined copies of the same or to procure the same to be duly stamped in all cases in which previous to the passing of this Act a discovery might have been obtained by filing a bill or by any other proceeding in a court of equity at the instance of the party so making application as aforesaid to the said court or judge.

See also R.S.C. (1900), Order 35, rules 16, 17, title SUPREME COURT, which als'O apply to District Courts, by virtue of the District C'Ourts Acts, 1958 to 1963, s. 188, title DISTRICT COURTS, V'OI. 4, p. 530. See also Magistrates Courts Rules, 1960, rule 165, title MAGISTRATES COURTS.

This section does not prevent a pa·rty from obtaining inspe(:tion otherwise, Bluck v. Gompertz (1851), 7 Exch. 67; Shadwell v. Shadwell (1859), 6 C.B.N.S. 679; Hunt v. Hewitt (1852), 7 Exch. 236.

It does not enable a party ,to discover what documents his opponent has, but only to see those doouments which ,he knows he has,Hunt v. Hewitt, supra.

As -to claims of privilege by the Crown on the ground of public interest, see Limerick Steamship Co. Ltd. v. Commonwealth (1922), 39 W.N. (N.S.W.) 167; Marconi's Wireless Telegraph Co. Ltd. v. Commonwealth (No.2) (19l3), 16 C.L.R. 178, cited under s. 74; Robinson v. South Australia, [1931] A.c. 704.

An order was made under.;,.1his section aHowing inspection of a telegram sent by the party seeking ,to inspect it to the other pa-rty, even <though the case was set down f'Or trial on the following Monday, Manning v. Corser (1874), 4 S.C.R. 95. .

See gener-ally Smith's Weekly Publishing Co. Ltd. v. Sunday Times Newspaper Co. Ltd. (1923), 31 c.L.R. 552.

For the cases onVhis section, see 18 English and Empire Digest (Rpl.), p. 87.

74. Inspection by jury or parties or witnesses. Jury Act of 1867 ss. 18 & 19. Either party shall· be at liberty to apply to the court or a judge for a rule or order- for the inspection by the jury or by himself or by his witnesses or by so many and such of the persons

~ .EVIDENCE AND DISCOVERY ACTS, 1867 TO 1962 58.72-78 515

summoned as jurors for the trial as. may be thought desirable of any real· or personal· property the inspection of which may be material to the proper determination of the question in ·dispute . . . .

and .it shall be lawful for the court or a judge if they 'or he think fit to make such rule or order upon such terms as to costs and otherwise as such court or judge may direct .

Provided always that nothing herein contained shall affect the provisions of any Act as to obtaining a view by a jury

Provided also that all rules and regulations now in force and appli­cable to the proceedings by view shall be held to apply to proceedings for inspection by a jury under the provisions of this Act or as near there10 as may be.

Act referred to: Jury Act of 1867, see' now Jury Acts, 1929 to 1958, title JURIES.

As to views. see now Jury Acts, 1929 to 1958, s. 43; Common Law Practice Acts, 1867 to 1940, s; 62, title PRACTICE; Criminal Code, s. 623, title CRIMINAL LAW, Vol. 3.

See also R.S.c. (1900), Order 58, rules 1-3, title SUPREME COURT; Magistrates Courts Rules,. 1960, rule 166, title MAGISTRATES COURTS.

Where the Crown claims privilege from inspection of an object on the ground of public welfare, the court must ascertain the nature of the alleged State secret and whether facts discoverable on inspection can prejudice public welfare, Marconi's Wireless Telegraph Co. Ltd. v. Commonwealth (No.2) (1913), 16 C.L.R. 178.

75. (Repealed.) Repealed by the Criminal Code Act, 1899, 63 Vic. No.9, s. 3 title CRIMINAL

LAW. Heading repealed by the Statute Law Revision Act of 1908, 8 Edw. 7 No. 18, s. 2, title ACTS OF PARLIAMENT, Vol. 1, p. 109.

IMPOUNDING OF DOCUMENTS

76. Impounding of documents. Whenever any document has been tendered or admitted in evidence by virtue of this Act the court or the person to whom the same has been tendered or who has admitted the same may at the request of any party against whom the same is so tendered or admitted in evidence direct that the same shall be impounded and be kept in the custody of some officer of the court or other proper person for such period and subject to such conditions as to the said court or person shall seem meet.

As amended by Criminal Code"Act; 1899,63 Vic. No.9, s. 3, title CRIMINAL LAW, Vol. 3.

GOVERNMENT PRINTER

77. Power of the Governor to appoint a government printer. It shall and may be lawful for the Governor of the said colony or for the officer administering the government for the time being for and in behalf of Her Majesty to appoint a government printer for the said colony and such government printer to suspend or remove and to appoint another in his stead as occasion may from time to time in the opinion of the said Governor or officer administering the government aforesaid require.

POWERS OF THE COURT

78. General rules may be made by the judges. 15 & 16 Vic. c. 76 s. 223. It shall be lawful for the judges of the Supreme Court or a majority of them of whom the Chief Justice shall be one from time to time to make all such general rules and orders for the effectual execution of this Act and of the intention and object hereof and for fixing the costs

516 EVIDENCE Vol. 5

to be allowed for and in respect of the matters herein contained and the performance thereof and for apportioning the costs of issues and also for altering the number of days by this Act limited for the return of any writ or for the doing of anything by this Act prescribed 'or authorised to be done and substituting other days for the same as in their judgment shall be necessary or proper

Provided thait nothing herein contained shall be construed to restrain the authority or limit the jurisdiction of the said court or the judges thereof to make rules or orders or otherwise to regulate and dispose of the business therein.

See also the power under Supreme Court Act of 1921, s. 11, title SUPREME COURT.

COMMENCEMENT AND SHORT TITLE

79. Commencement of Act. Short title. This Act shall commence on the thirty-first day of December one thousand eight hundred and sixty­seven and may be referred to as the "Evidence and Discovery Act of 1867."

For the collective title, see Evidence Acts Amendment Act of 1962, No. 9 of 1962, s. 3 (2).