Evidence Act 1977

The Act binds the Crown (section 2) and applies to all parties, witnesses, courts, and tribunals in Queensland proceedings. It particularly affects: prosecutors, defence lawyers, civil litigants and their counsel, children and persons with an impairment of the mind whose out-of-court statements may be admitted under section 93A, complainants in sexual offences and domestic violence proceedings (sections 14A protected counselling, 21A and 21M special and protected witnesses, 94A preliminary complaint), expert witnesses (section 9C), counsellors making protected counselling communications, foreign authorities seeking evidence in Queensland (section 24), and Queensland courts seeking evidence abroad (sections 26, 32). Government printers, parliamentary counsel, and the holders of public offices are recognised under Part 5.

Competency and oath (sections 9 to 9B). A witness is presumed competent to give evidence (section 9), unless the section 9A test is failed. Section 9B sets the test for competency to give sworn evidence.

Notice and information for jury (sections 93C, 21R, 132B). The court must warn the jury about hearsay evidence under section 93C. The court must give the section 21R direction concerning protected witnesses. The court must avoid prohibited directions on truthfulness or reliability under section 132B and section 132BAA.

Confidentiality of section 93A statements (sections 93AA, 93AC). Unauthorised possession of, or dealing in, section 93A statements or transcripts is an offence; publishing them is an offence. The regime is strict: even employment-screening applicants only have the limited use permitted by section 93AB.

DNA evidentiary certificate (section 95A). Sections in this family govern the use of certificates as proof of DNA results. Section 133A regulates DNA analysts.

Tendency and coincidence notices (sections 129AG to 129AK). A party seeking to lead tendency or coincidence evidence must comply with the notice requirements; the court may dispense with notice under section 129AH; restrictions on prosecution use under section 129AI; specific exceptions for character evidence about an accused under section 129AJ; and standard of proof under section 129AK.

Audiovisual link, foreign witnesses (Part 3). A party seeking to use audiovisual evidence from outside Queensland or Australia must comply with the supporting procedural framework, including swearing of witnesses outside Queensland, treatment of testimony from outside Australia other than on oath, and putting documents to a person at an external location.

Section 98 discretion to reject statements. The court may reject any section 93A or related statement "if for any reason it appears ... to be inexpedient in the interests of justice that the statement should be admitted." This is the principal residual safety valve in the hearsay regime, as analysed in Gately v The Queen [2007] HCA 55 at paragraph 90 of the stored reasons.

Section 99 discretion to withhold statement from jury. The court may direct that a statement in a document be withheld from the jury during deliberations if it might receive undue weight. Gately at paragraph 90 confirms this discretion.

Section 130 fairness discretion. The court may reject evidence in a criminal proceeding if its admission would be unfair to the accused. This preserves a common-law-style residual discretion notwithstanding the more granular statutory rules.

Section 129A non-standard mode of evidence. The court may order that evidence be given in a different way, providing flexibility to accommodate vulnerable witnesses, complex documentary evidence, or operational constraints.

Special and protected witness directions (sections 21A, 21S). The court may give a wide range of directions to facilitate the evidence of a special witness, and the protected witness regime confers further powers, including orders, directions, and rulings concerning protected witnesses.

Audiovisual link discretions. Sections 39 to 39Z confer discretions about taking testimony from outside Queensland and outside Australia, with rule-making power in section 39Z.

Court's power to impound (section 133). A document admitted into evidence may be impounded by order.

Most enforcement is interlocutory and procedural rather than criminal: the court rejects, admits, warns, directs, or impounds. The principal criminal offences are:

• Section 93AA: unauthorised possession or dealing in section 93A statements or transcripts. This is a substantive offence to protect the integrity of the section 93A regime.
• Section 93AC: publishing section 93A statements or transcripts. Publishing is prohibited.
• Section 103ZZZQ: contravention of complainant privacy order or interim complainant privacy order. This sits in the complainant privacy regime in Part 6.

In addition, witnesses who refuse to be sworn or to answer questions face the standard contempt and other procedural consequences under court rules, supplemented by the Act's provisions on examinations, depositions, and rejection.

Pre-recording of evidence (Part 9 transitional sections 141, 142; Part 2 special witness sections). Pre-recording of evidence for a summary trial and for a trial on indictment is governed by the surviving transitional sections together with the substantive special and protected witness regime.

Notice for tendency and coincidence evidence (sections 129AG, 129AH). The Act requires notice on a stated procedural cycle, with a court power to dispense.

Inter-jurisdictional requests (Part 3). Section 26 lets a Queensland court request a corresponding court in a prescribed country to take evidence for use in Queensland; section 27 governs the inverse where a Queensland court takes evidence for use elsewhere. Sections 32 and 33 govern transmission of requests and personal attendance.

Use of section 93A transcripts. Section 93AB allows limited use by employment-screening applicants or their lawyers; section 93AC prohibits publication absolutely.

The Act interacts with:

• Criminal Code (Qld). The protected witness regime under sections 21M to 21S engages Criminal Code section 616; section 21Q expressly addresses satisfaction of section 616. The section 130 rejection discretion overlaps with the Criminal Code's fair trial principles.
• Civil Proceedings Act 2011 (Qld) and Uniform Civil Procedure Rules. Civil pre-trial procedure governs the production of documents and evidence ahead of trial, with the Act applying at the admissibility stage.
• Queensland Civil and Administrative Tribunal Act 2009 (Qld). Section 3 includes "tribunal" in the definitions; the Act applies in QCAT proceedings as it does in courts.
• Disaster Management Act 2003 (Qld). Section 55A allows proof of disaster situations under that Act.
• Justice and Other Legislation Amendment Act 2003 (Qld). Section 136A is a declaratory provision tied to that amendment.
• Evidence Amendment Act 2000 (Qld). Section 136 is a transitional provision tied to that amendment.
• Foreign jurisdictions. Sections 22 to 24 and 25 to 33 stitch the Act into the cooperation arrangements with corresponding courts in prescribed countries.

The High Court in Gately v The Queen [2007] HCA 55 placed section 93A in the lineage of legislation modelled on the Evidence Act 1938 (UK), section 1 (Gately at paragraph 94), and observed that "the Queensland model is s 92(1) of the Act" (paragraph 94). The High Court treated sections 98 and 99 as the Queensland-specific safety valves.

• Section 93A is not narrow. Gately at paragraph 90 of the stored reasons confirms that the prosecution can both tender a section 93A statement and call the maker as a witness on the same subject. The opposing party can require the maker to be called.
• The amendment in 2005 to section 93A had retrospective effect. Gately at paragraph 83 of the stored reasons notes that the amendment was expressed as having retrospective effect; the version of section 93A in force after the amendment governed the trial.
• Section 98 discretion is broad. The discretion to reject "if for any reason it appears ... to be inexpedient in the interests of justice" is wide; counsel should not assume admissibility merely because the technical preconditions are met.
• Section 99 protects against the document-in-the-jury-room effect. Where the document might receive undue weight if taken into deliberations, the court may withhold it.
• Section 14 abolishes some privileges. Counsel must not assume common law privilege survives every situation; section 14 is the operative provision.
• Tendency and coincidence rules are codified. Counsel must comply with sections 129AG and 129AH on notice, plus section 129AI on prosecution restrictions and section 129AK on standard of proof.
• Protected counselling communications cannot be used freely. The regime in sections 14A onwards limits use, admission, and disclosure.
• Section 93AA, 93AC offences travel. Possession or dealing in section 93A statements or transcripts is an offence regardless of intent in many cases; section 93AC publishes prohibition is absolute.
• Inter-jurisdictional evidence requires the right form. Section 22 (commission, request, order) and section 26 (Queensland court request to corresponding country) are not interchangeable.
• Section 130 is the last fairness discretion. Even where section 92, 93, 93A, 93B, 95, or other provisions admit evidence, section 130 may exclude.

Example 1: child complainant in a sexual offence proceeding. Section 93A allows the prosecution to tender the child's statement to police. Section 21AC and the affected child witness regime governs pre-recording. Section 21A allows the court to give directions to facilitate the child's evidence. Section 9E sets the principles for dealing with a child witness. Section 132BAA prohibits directions on reliability of children's evidence. Section 21R requires a jury direction about pre-recorded evidence.

Example 2: prosecution wants to lead tendency evidence. The prosecution must comply with the notice requirements in section 129AG. The court may dispense under section 129AH. Restrictions on prosecution use under section 129AI apply. The standard of proof is set under section 129AK.

Example 3: Queensland court needs to take evidence from a witness in another country. Section 26 lets the court request a corresponding court in a prescribed country to take evidence for use in Queensland. Section 32 governs transmission. Section 39 family covers audiovisual link from external locations.

Example 4: civil party tendering a business record. Section 92 admits documentary evidence as to facts in issue. Sections 84 to 91 govern books of account. Section 95 covers statements in documents or things produced by processes or devices. Section 96 governs inferences about admissibility. Section 97 governs authentication.

Example 5: dealing with a section 93A transcript outside court. Section 93AB allows limited use by an employment-screening applicant or the applicant's lawyer. Section 93AC prohibits publication. Possession or dealing in the transcript is an offence under section 93AA outside the limited authorised uses.

Example 6: defendant arguing for rejection of an admitted statement. Section 98 gives the court discretion to reject "if for any reason it appears ... to be inexpedient in the interests of justice." Section 130 is the residual fairness discretion in criminal proceedings. Section 99 supplements with the discretion to withhold the statement from the jury during deliberations. As Gately confirms, these discretions are conjunctive: the court can engage one or all to manage the risk of unfair conviction.