section 52 — Adducing of Other Evidence Not Affected
Section 52 of the Evidence Act 1995 governs adducing of other evidence not affected. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Part 2.2 governs documentary proof; it does not exhaust all methods of adducing evidence.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where this Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation.
The application of section 52 is illustrated in Campbell v Hitchcock [2003] NSWIRComm 148. The Court held that section 52 preserves other Australian laws and practice rules that permit evidence to be adduced otherwise than by witness testimony or tendered documents.
At trial, the party relying on section 52 should prepare submissions that connect the statutory text to the facts in issue, identify any exceptions, and explain why alternative provisions do not displace the section. Where the court is asked to exclude, limit or facilitate evidence, the ruling should record the findings necessary to support appellate review.
Practical takeaway:
Part 2.2 governs documentary proof; it does not exhaust all methods of adducing evidence
Other statutes and practice rules may still permit real, demonstrative, or procedural methods of proof
Section 52 is a savings provision — read it before assuming only section 48 methods are available
Campbell v Hitchcock [2003] NSWIRComm 148
Guiding proposition:
The Court held that section 52 preserves other Australian laws and practice rules that permit evidence to be adduced otherwise than by witness testimony or tendered documents.
Section 53 of the Evidence Act 1995 governs views. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 53 applies to out-of-court demonstrations, experiments and inspections.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where a judge may, on application, order that a demonstration, experiment or inspection be held. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that a judge is not to make an order unless he or she is satisfied that the parties will be given a reasonable opportunity to be present, and or the judge and, if there is a jury, the jury will be present.
The application of section 53 is illustrated in Evans v The Queen [2007] HCA 59 at [220]. The High Court held that section 53 applies only to demonstrations, experiments or inspections conducted outside the courtroom that are to form part of the trial evidence.
A further example is Tongahai v R [2014] NSWCCA 81, where the Court applied section 53 in context. The Court held that an accused cannot be compelled to attend a view, but must be given a reasonable opportunity to be present under section 53(2)(a). Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 53.
Practical takeaway:
Section 53 applies to out-of-court demonstrations, experiments and inspections
Consider prejudice, misleading effect, waste of time, and whether the place or thing has materially altered
The court must not conduct an experiment during jury deliberations
Evans v The Queen [2007] HCA 59
Guiding proposition:
The High Court held that section 53 applies only to demonstrations, experiments or inspections conducted outside the courtroom that are to form part of the trial evidence.
Guiding proposition:
The Court held that an accused cannot be compelled to attend a view, but must be given a reasonable opportunity to be present under section 53(2)(a).
Section 54 of the Evidence Act 1995 governs views to be evidence. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. What is observed during a section 53 view is evidence, not mere background context.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where the court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that this Chapter is about whether evidence adduced in a proceeding is admissible.
The application of section 54 is illustrated in R v Rogerson ; R v McNamara (No 10) [2015] NSWSC 1067 ; R v McNamara (No 10) [2015] NSWSC 1067. The Court held that observations made during a court-ordered view constitute evidence and may support reasonable inferences under section 54.
A further example is Jamal v R [2012] NSWCCA 198, where the Court applied section 54 in context. The Court held that failure to comply with section 53(2)(a) can fundamentally flaw a trial; observations may be used only if the view was lawfully conducted. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 54.
Practical takeaway:
What is observed during a section 53 view is evidence, not mere background context
Inferences must be reasonable — not speculation or conjecture
Direct the jury that observations at the scene form part of the evidence they may consider
R v Rogerson ; R v McNamara (No 10) [2015] NSWSC 1067
Guiding proposition:
The Court held that observations made during a court-ordered view constitute evidence and may support reasonable inferences under section 54.
Guiding proposition:
The Court held that failure to comply with section 53(2)(a) can fundamentally flaw a trial; observations may be used only if the view was lawfully conducted.
