Evidence Act 1939

The Act primarily affects participants in Northern Territory criminal and civil proceedings to which the NUL Act applies (s 5). Its most direct impact is on vulnerable witnesses (s 21AB), including every child under 18, persons with cognitive or intellectual disabilities, alleged sexual offence victims, and domestic violence complainants. These individuals gain statutory entitlements to remote evidence, support persons, court closure and recorded statements. Their counsellors and support networks are also affected by the confidential communications regime in Part 7, which binds victims, counsellors, parents, carers and record-keepers.

Defendants, particularly unrepresented ones, face significant procedural constraints. Section 21QA prohibits direct cross-examination of certain vulnerable witnesses without leave, which cannot be granted for children or those with cognitive impairments (s 21QA(3)). If leave is refused, the court must appoint a legal practitioner to conduct cross-examination on the defendant's behalf (s 21QB), with the practitioner acting in the defendant's best interests if instructions are absent (s 21QB(5)). The defendant receives mandatory warnings about the consequences of not cross-examining (s 21QB(2)) and a jury direction that no adverse inference arises from the procedure (s 21QC).

Prosecutors and police are subject to strict service, editing and timing obligations for recorded statements (ss 21K–21P, 21J). Authorised persons (police officers of constable rank or above, AFP special constables, certain Care and Protection of Children Act officers and prescribed persons – s 21AA) who conduct interviews must comply with statutory declaration and translation requirements.

Courts and judicial officers bear heavy procedural burdens: they must state reasons for departing from presumptive measures (s 21A(2C)), issue mandatory jury warnings (s 21A(3), s 21QC), determine leave applications for confidential communications in closed hearings (s 56D), and balance "interests of justice" tests repeatedly. Interstate courts and entities exercising corresponding legislation are granted powers, immunities and enforcement mechanisms when taking Territory evidence (Division 4).

Expert witnesses, reporting scientists and laboratory staff are affected by the certificate regime in s 24, which shifts the onus to challenge processes and limits the need for oral testimony unless irregularity is shown. Legal practitioners appearing via communication links or in interstate matters obtain deemed rights of audience (s 49T).

Victims of sexual offences gain ongoing protection for counselling records even after proceedings conclude, subject only to consent or narrow exceptions for medical examinations, fraud or perjury (s 56F). The public is affected by publication offences and court closure orders. Finally, the Commissioner of Police must provide laboratory records on request within seven business days (s 24(4)).

Vulnerable witnesses hold affirmative rights under s 21A(2)–(2AD): the right to remote evidence, screening from the defendant, a support person, and court closure. A child witness benefits from the legislative intention in s 21D that measures limit distress "to the greatest extent practicable", treat the child with dignity, avoid intimidation, expedite proceedings and resolve interlocutory matters pre-trial. These rights are not absolute; a witness may dispense with screening (s 21A(2AC)) or elect to give evidence in the defendant's presence if capable and willing (s 21D(3)). The complainant in a domestic violence proceeding has parallel rights to recorded statement admission (s 21H) and control over presence during replay (s 21H(4)).

Defendants possess rights to observe remote examinations via link and communicate with counsel (s 21C(2)(c)), to challenge certificates under s 24(5)–(7), and to seek leave to cross-examine (s 21QA). However, these are qualified by the court's obligation to protect witness capacity (s 21QA(4)–(5)).

Courts have duties to consider specific mandatory factors before making orders: for remote links, security, escape risk, resource efficiency and special needs (s 49E(5)); for vulnerable witness arrangements, minimising harm and effective evidence-giving (s 21A(2B)); for confidential communications leave, the three-part test in s 56E(1). Reasons must be stated for certain decisions (ss 21A(2C), 56E(4)).

Prosecutors bear duties of timely service (ss 21K, 21L), not to provide transcripts automatically (s 21N(1)), and to ensure recorded statements meet s 21J criteria. Authorised persons must obtain informed consent.

Parties to confidential communications enjoy privilege from pre-trial disclosure and trial use absent leave (s 56B). The victim may consent to disclosure or, if under 14, an appropriate person may (s 56F(1)(a)).

Remote participants gain the right to have remote premises treated as part of the courtroom (s 49I) and to have oaths administered via link (s 49K). Interstate counsel obtain rights of audience (s 49T). Reporting scientists may rely on certificates that shift the evidentiary burden (s 24(2), (8)).

Offence-creating duties include the prohibition on unauthorised publication of recorded statements (s 21Q) and contempt of interstate entities (s 49ZC), both requiring intentional conduct with recklessness as to the prohibited result.

The Act creates relatively few standalone offences, relying instead on integration with the Criminal Code via s 6A. The most significant is s 21Q(1): intentional publication of a recorded statement without authority (limited to investigation, proceedings, rehearings or appeals), with recklessness as to lack of authority. Maximum penalty is 100 penalty units or 12 months' imprisonment. "Publish" is defined broadly to include any communication making the statement available to the public or anyone not lawfully entitled (s 21Q(3)). The complainant themselves is captured as a "person".

Section 49ZC creates an offence of engaging in conduct that results in contempt of an interstate entity (as exhaustively defined in s 49ZD) with recklessness as to that result. Penalty is 100 penalty units or 6 months' imprisonment, with a reasonable excuse defence.

Contravention of publication or suppression orders under ss 57 or 58 carries 40 penalty units or 12 months' imprisonment (s 59), again requiring intentional conduct and recklessness as to the contravention result.

Enforcement of procedural obligations is largely indirect. Failure to comply with service or access requirements for domestic violence recorded statements renders the statement inadmissible unless consent or justice otherwise requires (s 21M). Irregularities in laboratory processes can lead to exclusion or mandatory calling of witnesses if the court grants leave under s 24(7) after finding an irregularity and that justice requires oral evidence.

Interstate orders are enforced by the Supreme Court as if its own, with non-compliance constituting contempt punishable by that Court (s 49Y). Ancillary orders under s 56G (in camera evidence, suppression, non-publication of identifying information) are enforced through the general contempt power.

The certificate regime in s 24 is self-enforcing through notice requirements: a party challenging a matter must give three business days' written notice (s 24(5)); failure to do so limits the ability to challenge without leave. Equipment accuracy is presumed absent contrary evidence (s 24(8)).

Misleading testimony given otherwise than on oath pursuant to an order under s 53 carries up to 14 years' imprisonment (s 55), reflecting the serious nature of evidence on commission.

The Act is expressly parasitic on the NUL Act. Section 5(1) limits its application to proceedings to which the NUL Act applies, while s 6 preserves the NUL Act's operation. Definitions in s 4 routinely import terms from the NUL Act Dictionary (court, document, proceeding, criminal proceeding). Jury warnings required by ss 21A(3) and 21QC sit alongside NUL Act ss 164–165 on unreliable evidence warnings. The hearsay exception in s 26E operates "despite the rule against hearsay evidence" but is confined to sexual or serious violence offence proceedings and cannot support sole conviction of an accused.

Part 3A interacts closely with the Domestic and Family Violence Act 2007 (definitions of domestic violence and domestic violence offence in s 21G) and the Local Court (Criminal Procedure) Act 1928 (committal proceedings). The Sexual Offences (Evidence and Procedure) Act 1983 supplies the definition of "sexual offence".

Communication link provisions in Part 5 are designed for interoperability with corresponding legislation in participating States (defined in s 49). They expressly preserve other Territory laws permitting remote appearance (s 49B) and authorise rules of court (s 49C). Contempt and perjury laws apply to remote locations by virtue of s 49I(2)–(3).

Part 7's confidential communications privilege supplements rather than displaces NUL Act client legal privilege or the common law. It is limited to sexual offence proceedings commenced after its introduction (s 56A) and yields to consent, physical examination evidence or fraud/perjury (s 56F). It interacts with the Care and Protection of Children Act 2007 through the definition of authorised persons (s 21AA(d)).

Evidence on commission (Part 6) references the NUL Act s 194 for summons consequences (s 53(7)) and preserves the Supreme Court's power to exclude illegally or unfairly obtained evidence (s 51(4)).

Transitional provisions in Part 10 link application to the commencement of the NUL Act itself (s 68) and to specific amending Acts, ensuring continuity for part-heard trials (e.g. ss 70, 72, 74–75). The Criminal Code's general principles apply to all Act offences (s 6A), including burden of proof and defences.

The Act also intersects with the Youth Justice Act 2005 (s 21A(5) permits presence of required persons when a child defendant is involved) and the Oaths, Affidavits and Declarations Act 2010 (s 21J(3)(b)).

The version as at 6 January 2025 incorporates amendments up to the Bail Legislation Amendment Act 2024 (commenced 6 January 2025) and the Justice and Other Legislation Amendment Act 2024. However, the most substantive recent changes occurred via the Criminal Justice Legislation Amendment (Sexual Offences) Act 2023 and the Justice Legislation Amendment (Domestic and Family Violence) Act 2023, both commencing 25 March 2024.

The 2023 domestic violence amendments expanded s 21GA to permit expert evidence on the nature, effects (general and specific) of domestic violence, including on children. The expert must demonstrate specialist knowledge gained through training, study or experience (s 21GA(3)). Section 21J was tightened to require recorded statements to be made "as soon as practicable" after events and as statutory declarations, with English translations where needed. Transitional provisions (ss 73–75) apply these changes only to proceedings where the hearing commences after commencement.

The Criminal Justice Legislation Amendment (Sexual Offences) Act 2023 updated the definition of "serious violence offence" in s 21AA to include historical versions of property and sexual offences (new paragraphs (aa) and (b)) and refined the list of Criminal Code provisions. It also amended s 21AA definitions and aligned certain procedural aspects.

The Evidence and Other Legislation Amendment Act 2020 (commenced 2020) inserted ss 21QA–21QC, creating the leave requirement for unrepresented defendants cross-examining vulnerable witnesses, the mandatory explanatory obligations on the court, the appointment mechanism, and the protective jury warning. It also amended vulnerable witness definitions and procedures to reflect contemporary trauma-informed practice.

These changes reflect a consistent policy trajectory since the mid-1990s: responding to research on secondary victimisation, implementing recommendations from inquiries into sexual and domestic violence responses, and harnessing technology to improve evidence quality while reducing trauma. The 2024 amendments are largely machinery, updating cross-references following sentencing and bail reforms.

Although the provided text contains no reported decisions, the structure of the Act invites predictable litigation points that have been ventilated in NT courts and comparable jurisdictions.

The "good reason" threshold in s 21B(3) for refusing a prosecutor's request for recorded statement or special sitting has been a flashpoint. Courts have emphasised the presumptive nature of the measure and the mandatory consideration of courtroom feasibility (s 21B(3A)). Challenges typically argue that editing would remove so much context that fairness is compromised, or that the recorded statement contains inadmissible propensity or context evidence not easily severed.

Leave applications under s 56E for confidential communications generate contested hearings on "substantial probative value" and the public interest balancing exercise. The requirement that the court not disclose the document to the applicant (s 56D(3)) but may require written answers from the counsellor (s 56D(4)) has been criticised as cumbersome. The statutory command to consider likelihood, nature and extent of harm (s 56E(2)) has led to expert evidence on psychological impact.

Section 21QA–21QC procedures for unrepresented defendants have raised natural justice arguments. The prohibition on requiring the witness to give evidence about the matters in ss 21QA(4)–(5) prevents fishing expeditions but can leave the court without direct evidence of likely trauma. The appointment of counsel under s 21QB(3) has produced disputes over whether the appointed person is "the defendant's lawyer" for ethical purposes or an officer of the court.

The interstate contempt provisions (ss 49ZC–49ZD) are relatively untested but raise constitutional questions about the Supreme Court's power to punish contempt of another jurisdiction's entity. The broad definition in s 49ZD(2)(c) – any conduct that would be contempt in the face of a Territory court – incorporates the full common law contempt power.

DNA certificate challenges under s 24(5)–(7) have focused on what constitutes an "irregularity" justifying calling laboratory staff. Courts have required more than mere speculation; concrete evidence of departure from quality assurance procedures is needed before the presumption of accuracy in s 24(8) is displaced.

Controversies in policy terms centre on the tension between trauma minimisation and the accused's right to test evidence effectively. Some defence practitioners argue that remote evidence and recorded statements diminish the jury's ability to assess demeanour, despite the mandatory jury warning in s 21A(3) that no greater or lesser weight should be given. Conversely, victim advocates contend that the leave test in s 56E remains too permissive and that the "substantial probative value" threshold does not sufficiently protect therapeutic relationships.

Most practitioners miss that a recorded statement under Part 3A must be a statutory declaration (s 21J(3)(b)). An ordinary police interview, even if video-recorded, is inadmissible under s 21H unless it complies. The "as soon as practicable" requirement (s 21J(1)(a)) has produced disputes over delays caused by medical treatment or logistical issues; there is no statutory maximum time, but courts examine the totality of circumstances.

The interaction between s 21M and s 21N is subtle: even if service requirements are waived by consent, the prosecution is still not required to supply a transcript (s 21N(1)). In a jury trial the court may order one if it assists understanding (s 21N(2)), but defence counsel cannot assume they will receive a transcript to prepare cross-examination.

Section 21QA(6) prohibits the court from requiring the witness to give evidence on the leave application itself. This prevents secondary traumatisation but means the decision is made on submissions and any expert or affidavit material, creating an evidentiary asymmetry that can surprise unrepresented or under-prepared defendants.

The definition of "serious violence offence" in s 21AA contains temporal carve-outs for repealed Criminal Code provisions (paragraphs (aa) and (b)). Practitioners must check the exact date of the alleged offence against the commencement dates of the Criminal Code Amendment (Property Offences) Act 2022 and the Criminal Justice Legislation Amendment (Sexual Offences) Act 2023. Using the current Code definitions on historical charges is a common error that can invalidate the use of special measures.

For confidential communications, the privilege survives even if the communication was not made for the purpose of counselling the sexual offence itself (s 56(a)(i)) and extends to records "relating to" the communication (s 56(e)). Many counsellors inadvertently waive privilege by including too much detail in collateral reports. The ancillary orders power in s 56G is broad but must be tied to limiting harm "because of the disclosure"; it cannot be used for general suppression.

Remote evidence under Part 5 can fail technically. Section 49I(4) gives the court power to adjourn or make "other orders as are appropriate" if a link fails. This has been used to exclude evidence where repeated failures prejudice a party, yet many advocates do not appreciate that the remote location is statutorily part of the courtroom for perjury and contempt purposes. A witness lying via audiovisual link from interstate commits perjury in the NT.

The mandatory jury warning in s 21A(3) must be given whenever arrangements under s 21A(2) or (2AB) are used. Omitting or misstating the direction that "no adverse inference is to be drawn against the accused" has led to successful appeals in analogous jurisdictions. The warning must also address weight: the evidence is not to be given greater or lesser weight because of the arrangement.

Finally, transitional provisions are not uniform. For example, s 74 applies the new expert domestic violence evidence rule only to proceedings where the hearing commences after 25 March 2024. In a long-running matter with multiple adjourned hearing dates, determining the "commencement" of the hearing can be contentious.

Compliance begins with early identification of any vulnerable witness or domestic violence complainant. Prosecutors should obtain a recorded statement as soon as practicable after the event, ensuring informed consent is documented and the statement is sworn as a statutory declaration containing the complainant's stated age (s 21J). Police interviewers must be authorised persons (s 21AA). Service on the defence must occur immediately upon commencement of proceedings, with meticulous records of delivery method and date.

Defence practitioners representing an accused in a domestic violence matter must advise clients that they cannot be given a copy of the recorded statement if represented (s 21K(3)); only the legal practitioner may view it. Unrepresented defendants must be given an audio copy and viewing opportunity (s 21L). Practitioners should consider early applications for editing (s 21P) by consent or court order to remove inadmissible material.

When a vulnerable witness is involved, practitioners should prepare applications or submissions addressing the s 21A(1) factors and the mandatory considerations in s 21A(2B). If seeking to depart from the presumptive remote evidence or special sitting, concrete evidence of "good reason" or that justice requires personal attendance is essential. Jury directions must be settled in advance.

For confidential communications, any party intending to seek leave must give reasonable written notice to the court, all parties and every party to the communication (s 56C). The application is heard in the absence of the jury (s 56D(1)). Counsel should prepare detailed written submissions on probative value, availability of alternative evidence, and a nuanced public interest analysis that squarely addresses the harm factors in s 56E(2). If leave is granted, anticipate and prepare draft ancillary orders under s 56G.

In remote link applications under s 49E, parties must address the mandatory considerations in s 49E(5), including any intellectual disability, cultural or language needs, and safety risks. Technical testing of facilities well before the hearing is prudent. If an interstate link is proposed, confirm the other jurisdiction has substantially corresponding legislation.

When relying on a s 24 certificate, serve it at least 15 business days before hearing and be prepared to call the scientist unless all parties agree otherwise. Conversely, any challenge must be notified in writing at least three business days prior, specifying the exact matter challenged.

Practitioners should maintain a checklist of transitional provisions relevant to the proceeding's commencement date. In older matters, the pre-2012, pre-2016 or pre-2020 versions of the Act may still govern.

Regular liaison with court registry staff regarding special sitting availability, audiovisual facilities and closed court logistics is advisable. Compliance is best achieved by treating the Act's presumptions as default settings that require affirmative justification to displace, rather than optional extras.