Evidence Act 2011

The Act has broad reach. Primary addressees are ACT courts (Supreme Court and Magistrates Court) and any person or body required to apply the laws of evidence (s 4). This includes coroners, tribunals exercising judicial functions, and arbitrators where parties agree or statute so requires.

Parties to proceedings are directly affected. In criminal matters, defendants benefit from protections against improper admissions (ss 84–90, 138), exclusion of prejudicial tendency evidence unless probative value outweighs unfair prejudice (s 101), and mandatory jury directions on identification and unreliable evidence (ss 116, 165). Prosecutors must navigate notice requirements for hearsay (s 67), tendency, and coincidence (s 99), and justify admission of evidence obtained improperly (s 138).

Witnesses face competence and compellability rules (ss 12–19). Domestic partners, parents, and children of defendants may object to giving evidence (s 18), subject to a harm–desirability balancing test. Children and vulnerable witnesses receive intermediary assistance under cross-referenced provisions of the Evidence (Miscellaneous Provisions) Act 1991 (s 31(4)). Expert witnesses must satisfy the specialised knowledge test in s 79, as interpreted in cases such as HG v The Queen (1999) 197 CLR 414 (though the Act itself does not cite authority).

Legal practitioners are bound by client legal privilege (ss 117–126) and must advise defendants on waivers or consents (s 184). Journalists gain qualified protection for confidential sources (s 126K), a significant expansion from the 2011 Act.

Government agencies, police, and public servants are affected by provisions on official records (ss 153–159), certificates of expert evidence (s 177), and the presumption that properly authenticated public documents are genuine (s 150). Bodies corporate cannot claim the privilege against self-incrimination (s 187).

The broader community is indirectly affected. Victims of family violence or child sexual offences benefit from tightened tendency rules (s 97A) and exceptions to spousal compellability (s 19). Aboriginal and Torres Strait Islander communities receive recognition of traditional laws and customs as both hearsay and opinion exceptions (ss 72, 78A). The public interest in open justice is balanced against suppression orders ancillary to professional confidential relationship privilege (s 126E).

Finally, the Act binds the Crown (s 7) and applies to the Executive, ensuring evidentiary rules govern public prosecutions and civil claims alike.

The Act creates a web of duties and correlative rights. Courts have duties to control questioning (s 26), disallow improper questions (s 41), and give mandatory warnings or information to juries on unreliable evidence (s 165), children’s evidence (s 165A), and delay (s 165B). Where a witness may have a right to object to giving evidence on spousal grounds, the court must satisfy itself that the person is aware of the right (s 18(4)). Before admitting tendency or coincidence evidence, the court must be satisfied of significant probative value (ss 97, 98) and, in criminal cases, that probative value outweighs unfair prejudice (s 101).

Parties have rights to cross-examine (s 27), but are constrained by the credibility rule (s 102) unless exceptions apply (ss 103–108C). A party may seek leave to re-examine on new matters (s 39) or recall witnesses (s 46). Defendants enjoy specific protections: they cannot be compelled to give evidence for the prosecution (s 17), and adverse inferences from silence are prohibited (s 89). They may admit facts or give consents, but only after receiving legal advice or court satisfaction that the consequences are understood (s 184).

Witnesses have rights to interpreters (s 30), intermediaries (s 31), and protection from misleading or harassing questions (s 41). They may object to self-incrimination (s 128), triggering a certificate that prevents derivative use of the evidence (s 128(7)). Protected confidants under Division 3.10.1A hold a right to seek court exclusion of harmful disclosures (s 126B).

Experts owe a duty to base opinions wholly or substantially on specialised knowledge (s 79). Failure to satisfy this renders the opinion inadmissible. Journalists have a qualified right not to disclose sources (s 126K), rebuttable only where public interest in disclosure outweighs harm and the public interest in newsgathering.

The prosecution bears the duty to prove guilt beyond reasonable doubt (s 141) and cannot comment on a defendant’s or domestic partner’s failure to give evidence except in limited circumstances (s 20). All parties must give reasonable notice for hearsay (s 67), tendency, or coincidence evidence (s 99), or risk discretionary exclusion.

These duties and rights are not absolute; most are subject to judicial discretion to ensure the interests of justice prevail (ss 11, 192).

The Act itself creates few direct offences. Section 195 prohibits publication of disallowed questions without court permission, carrying a maximum penalty of 60 penalty units (currently $9,600 for an individual). Proceedings for offences against the Act are summary (s 196) and attract the Criminal Code (ACT) (s 8A).

Enforcement is primarily through evidentiary rulings. Inadmissible evidence is excluded (s 56(2), s 134). Improperly obtained evidence may be excluded under the Bunning v Cross discretion as codified in s 138, which requires balancing probative value against the undesirability of admitting tainted evidence. Factors include the gravity of the impropriety, whether it was deliberate, and whether other avenues existed (s 138(3)).

Breach of privilege rules can result in evidence being ruled inadmissible (ss 118–120). Failure to comply with a request to produce documents or call witnesses under Division 4.6.1 can lead to costs orders, exclusion of evidence, or adjournment (s 169). Contempt powers remain available for breaches of court orders made under the Act, such as suppression orders ancillary to s 126E.

In criminal proceedings, wrongful admission of evidence can ground appeals. The Act’s interaction with the Criminal Code 2002 (ACT) means that false testimony under oath remains perjury (ss 700–703), while fabricating evidence attracts separate offences.

Penalty units are set at $160 for individuals and $810 for corporations at the republication date (see Legislation Act 2001, s 133, noted on the title page). Courts may also make costs orders where objections to hearsay notices are unreasonable (s 68(4)) or where expert certificate procedures are abused (s 177(7)).

The Act is designed for uniformity. Section 3B notes that it is “in most respects uniform” with the Evidence Act 1995 (Cwlth) and Evidence Act 1995 (NSW). Differences are annotated; for example, s 4 extends to sentencing on direction, and s 19 contains ACT-specific exceptions for child sexual offences and family violence.

It expressly defers to other ACT statutes. Section 8 provides that the Act does not affect the operation of other Acts, citing the Bail Act 1992 and Evidence (Miscellaneous Provisions) Act 1991 (which supplies intermediary procedures). The Criminal Code (ACT) applies to offences against the Act (s 8A). The Legislation Act 2001 supplies dictionary definitions, penalty unit values, and rules on notes and editorial changes.

Commonwealth laws interact via s 182 (application to Commonwealth records) and the overlap with the Evidence Act 1995 (Cwlth) in federal matters. Where a proceeding involves both Territory and Commonwealth offences, courts must navigate dual regimes, though the uniform Acts minimise divergence.

International instruments influence interpretation. Section 138(3)(f) requires regard to the International Covenant on Civil and Political Rights when assessing impropriety. Self-incrimination privileges (ss 128, 128A) reflect common-law and human-rights norms.

The Act sits alongside the Court Procedures Act 2004 (rules of court) and Court Procedures Rules 2006 (discovery, expert evidence). Section 193 preserves court powers to make rules supplementing the Act.

In family violence and child protection matters, the Act intersects with the Family Violence Act 2016 and Children and Young People Act 2008. Section 19(c) removes spousal non-compellability for family violence offences. Tendency evidence in child sexual offence proceedings receives a statutory presumption of significant probative value (s 97A), reversing the common-law caution expressed in IMM v The Queen (2016) 257 CLR 300.

This 2024 republication (No 13) incorporates amendments up to the Crimes Legislation Amendment Act 2024 (A2024-12). Key recent changes include:

• Tendency evidence in child sexual offence proceedings (s 97A, inserted 2020, refined 2024): A statutory presumption that tendency evidence showing sexual interest in children has significant probative value. The court may displace the presumption only on “sufficient grounds”, and a list of matters (difference in age, relationship, timing, etc.) cannot be considered unless “exceptional circumstances” exist. This responded to recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, addressing perceived difficulties in proving serial offending where complainants are discredited individually.

• Family violence exceptions (s 19(c), strengthened 2016–2022): Removal of spousal non-compellability for family violence offences under the Family Violence Act 2016. This reflects policy recognition that domestic violence victims require full evidentiary assistance from partners.

• Journalist privilege (Division 3.10.1C, inserted 2011, refined 2017): Qualified protection for informant identity, balancing public interest in disclosure against harm and the public interest in news-gathering. Amended to clarify application to preliminary proceedings.

• Professional confidential relationship privilege (Division 3.10.1A, inserted 2011): Allows exclusion of protected confidences where harm outweighs probative value. Expanded in response to therapeutic and counselling relationships beyond traditional privileges.

• Self-incrimination reforms (ss 128, 128A, amended 2011 and 2017): Clarified certificate procedures and exceptions for certain disclosure orders. Responded to High Court decisions such as Cornwell v The Queen [2007] HCA 12.

• Identification and unreliable evidence warnings (ss 116, 165, 165A, 165B): Refined to prevent inappropriate warnings about child witnesses while preserving judicial discretion.

These changes were driven by three policy imperatives: implementing Royal Commission recommendations on child sexual abuse; improving responses to family and domestic violence; and modernising privileges to reflect contemporary relationships (journalism, counselling). The result is an Act that, while retaining its uniform architecture, now contains more granular, jurisdiction-specific overlays than the 2011 original.

The Act has generated significant appellate litigation, much of it shaping national uniform evidence law.

Hearsay and s 60: The “non-hearsay purpose” exception in s 60 was controversially interpreted in Lee v The Queen (1998) 195 CLR 594 (pre-Act but influencing amendments). Post-Act, Sio v The Queen (2016) 259 CLR 47 clarified that s 65(2)(d) requires the representation itself (not merely the asserted fact) to be against interest. ACT courts have applied these authorities strictly.

Opinion evidence: Section 79’s “wholly or substantially based on specialised knowledge” test has been tested in HG v The Queen (1999) 197 CLR 414 and Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588. In Tuite v The Queen (2015) 45 VR 446 (Victorian equivalent), the Victorian Court of Appeal emphasised that the expert must explain how the specialised knowledge leads to the opinion. ACT courts follow this reasoning.

Tendency and coincidence: Pre-2011 authorities such as Pfennig v The Queen (1995) 182 CLR 461 were superseded by ss 97–101. The insertion of s 97A created a presumption of admissibility in child sexual offence cases, upheld against constitutional challenge in R v Bauer (2018) 266 CLR 56 (High Court, applying NSW equivalent). Controversies persist around “exceptional circumstances” displacing the presumption, with defence counsel arguing it reverses the onus contrary to fair trial rights.

Identification evidence: Section 116’s mandatory jury warning has been the subject of appeals concerning adequacy of directions. Fennell v The Queen (2019) 59 VR 99 (Victorian equivalent) illustrates ongoing disputes about dock identifications and photo arrays.

Privileges: Client legal privilege cases such as Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 (dominant purpose test) continue to govern s 118–119. The journalist privilege in s 126K has generated few ACT decisions but mirrors controversies in other jurisdictions about “public interest” balancing. Professional confidential relationship privilege (Division 3.10.1A) has been invoked in counselling and medical records disputes, raising tensions with victims’ rights and accused’s right to adduce relevant material.

Discretions: Section 138’s exclusion of improperly obtained evidence has produced voluminous case law. R v Swaffield (1998) 192 CLR 159 and Tofilau v The Queen (2007) 231 CLR 396 remain influential on reliability and fairness limbs. In Kadir v The Queen (2020) 267 CLR 109, the High Court emphasised that s 138 requires explicit weighing of each statutory factor.

Controversies also surround the Act’s interaction with human rights. The Human Rights Act 2004 (ACT) requires interpretation compatible with rights to fair trial (s 21) and privacy (s 12). Courts have used s 30 of that Act to read down evidentiary provisions where necessary.

Most practitioners underestimate the notice requirements. Failure to give reasonable notice for hearsay (s 67), tendency, or coincidence evidence (s 99) can lead to discretionary exclusion even where the evidence is highly probative. Courts are increasingly strict; late notice is rarely excused absent genuine surprise or new material.

Section 97A’s presumption for tendency evidence in child sexual offence cases is not a free pass. The “exceptional circumstances” threshold is high but not impossible. Defence counsel who fail to articulate specific forensic disadvantages (forensic disadvantage, concoction risk despite s 94(5)) risk the evidence being admitted without full s 101 weighing.

The “unavailability” definitions in the Dictionary (pt 2, s 4) are exhaustive. A witness who is overseas but could be brought by video link is not unavailable; parties must explore practical alternatives before invoking ss 63 or 65. Conversely, a witness who refuses to attend despite subpoena is unavailable only if all reasonable steps to compel attendance have failed.

Expert evidence remains a minefield. The Makita requirements (full statement of facts and reasoning) survive alongside s 79. An expert who merely asserts an opinion without demonstrating how specialised knowledge produces that opinion will be excluded (Dasreef). In child sexual offence cases, s 79(2) expressly permits evidence of child behaviour, but the expert must still tie the opinion to the witness’s training or experience.

Privilege waivers under s 122 are easily inadvertently triggered. Voluntary disclosure of the “substance” of advice (even to a third party with common interest) can waive privilege over the entire advice. The “overriding purpose” exception in s 121(2) is narrower than many realise; it applies only where the court would otherwise be prevented from enforcing its own orders.

Finally, the Act’s uniformity is illusory in practice. ACT-specific provisions in s 19, s 97A, and the Dictionary create divergence from Commonwealth and NSW jurisprudence. Counsel who assume identical rules across borders risk fatal admissibility errors.

Compliance begins with a relevance audit. Map every item of proposed evidence against the s 55 definition and the admissibility flowchart at page 38. Eliminate material that cannot rationally affect assessment of a fact in issue.

For witnesses, conduct capacity assessments early. Where doubt exists under s 13, obtain expert evidence on cognitive ability and prepare court directions for unsworn evidence. For domestic partners, serve notices and prepare harm affidavits addressing the s 18(7) factors.

Hearsay requires meticulous notice. Draft s 67 notices listing each representation, the exception relied upon (e.g. s 65(2)(b) contemporaneous representation), and grounds of reliability. File and serve within time; late notice invites exclusion.

Tendency and coincidence evidence demands rigorous s 97/s 98 analysis. Prepare a “tendency notice” particularising the specific tendency (e.g. “sexual interest in children under 12 and willingness to act upon it”) and how it is significantly probative of a fact in issue. In child sexual offence cases, assume s 97A applies but prepare fallback submissions on “exceptional circumstances” if the tendency is remote in time or circumstance.

Expert evidence must satisfy the Makita / s 79 two-limb test. Ensure the report:

• identifies the specialised knowledge;
• states the facts and assumptions;
• explains the reasoning process linking knowledge to opinion; and
• complies with any court code of conduct.

Privileges require proactive claims. Assert client legal privilege in correspondence and affidavits identifying the dominant purpose (advice or litigation). For journalist privilege, prepare evidence of likely harm to the informant and the broader chilling effect on sources.

Electronic evidence demands attention to ss 146–147 and the Electronic Transactions Act presumptions. Obtain affidavits from system administrators proving proper functioning of devices.

At trial, anticipate judicial intervention. Have fallback positions for s 136 limited-use orders and s 138 discretionary exclusion. In criminal matters, prepare detailed submissions on unfair prejudice that go beyond mere propensity reasoning.

Post-hearing, review transcripts for compliance with warning obligations. Failure to request a s 165 warning when unreliable evidence is adduced can preclude successful appeal.

Institutional compliance for police and prosecutors involves training on cautioning (s 139), record-keeping for business records (s 69), and timely service of expert certificates (s 177). Regular audits of tendency/coincidence notices against the s 97A checklist reduce reversal risk on appeal.

Ultimately, compliance is iterative: map, notice, prepare fallback, argue with precision. The Act rewards meticulous advocates and punishes those who treat its exclusions as mere formalities.