Evidence (Miscellaneous Provisions) Act 1991

Children and vulnerable witnesses. The Act creates substantial protections for child witnesses and witnesses with cognitive impairments, including mandatory intermediary appointments and closed circuit television arrangements.

Complainants in sexual offence and family violence proceedings. The counselling communications immunity protects the confidentiality of communications in counselling sessions, preventing disclosure without leave.

Courts and judicial officers. Judges must apply the Act's procedures for leave applications, preliminary examinations of protected confidences, and witness intermediary appointments.

Counsel. Lawyers must navigate the leave requirements before cross-examining complainants on prior sexual history or seeking access to counselling records.

Counsellors and therapists. Persons providing counselling services to victims of sexual or family violence may be called upon to produce records. The immunity under Division 4.4.3 protects those records absent leave.

Mandatory intermediary appointment. Section 4AK requires courts to appoint an intermediary for prescribed witnesses in criminal proceedings, subject to limited exceptions.

Counselling communication immunity. Section 79D creates a default immunity preventing disclosure of protected confidences without leave. Parties seeking to use such communications must follow the leave procedure in sections 79E to 79H.

Preliminary examination. Section 79G requires a court to conduct a preliminary examination of protected confidence evidence before deciding whether to grant leave, balancing the forensic purpose (section 79F) against the harm to the person who made the communication.

Leave for prior sexual history evidence. Section 76 makes evidence of a complainant's prior sexual history generally inadmissible. Section 77 requires a party seeking to adduce such evidence to apply for leave, and section 78 sets out the criteria for granting leave.

Intermediary appointment. The court has discretion to decline an intermediary appointment where no suitable person is available or where the appointment would not be in the interests of justice (section 4AK(2)). The court must not appoint an intermediary where the witness, aware of their rights, wishes to give evidence without one (section 4AK(3)).

Preliminary examination of protected confidences. Section 79G gives the court power to conduct a preliminary examination of the protected confidence evidence in the absence of the parties (other than the person who made the protected confidence, who may attend). The court assesses whether the evidence meets the threshold test (legitimate forensic purpose under section 79F) and whether the harm of disclosure outweighs the forensic benefit.

Leave to cross-examine on prior sexual history. Section 78 gives the court discretion to grant leave to adduce evidence of a complainant's sexual activities, applying the considerations in that section.

Audiovisual link evidence. The court may direct or allow a document to be put to a witness giving evidence by link in any way the court thinks appropriate (section 35C(2)).

The Act is primarily procedural and protective rather than penal. It does not create criminal offences for breaches of evidentiary requirements. The consequences for non-compliance are procedural: evidence obtained in breach of the immunity provisions would be inadmissible, and orders obtained without following the required procedures could be set aside.

Intermediary appointment procedure. The court must consider intermediary appointment early in proceedings for prescribed witnesses. The intermediaries administrator's assessment is a prerequisite to appointment.

Protected confidence leave procedure. The party seeking access to protected confidences must make an application (section 79E). The court then applies the threshold test (section 79F) and conducts a preliminary examination if the threshold is met (section 79G). Only if the preliminary examination supports it does the court proceed to decide whether to grant leave (section 79H).

Leave for prior sexual history. Applications for leave must be made before the evidence is adduced. Courts commonly deal with these applications in the absence of the jury.

Evidence Act 2011 (ACT). The primary uniform evidence law for the ACT. The Evidence (Miscellaneous Provisions) Act 1991 supplements and modifies the Evidence Act 2011 in specific areas. Section 35B(3) provides that the unsworn evidence provision in Chapter 1B applies despite anything to the contrary in the Evidence Act 2011 or any other territory law.

Crimes Act 1900 (ACT). Sexual offence and family violence offences creating the context for the Act's special protective provisions are defined in the Crimes Act 1900.

Legislation Act 2001 (ACT). The standard ACT legislative interpretation Act.

Criminal law generally. The High Court in The Queen v GW [2016] HCA 6 considered section 70 of this Act in the context of the competency and admission of unsworn child evidence, and the obligations on trial judges to direct juries appropriately about the reliability of such evidence.

The counselling communications immunity is not waivable by the counsellor. Section 79J provides that a person cannot waive the immunity. Only the person who made the protected confidence may consent to disclosure, and only in the prescribed manner.

Medical information is not protected. Section 79K excludes communications of medical information from the protected confidence immunity. Counselling records that contain medical information may not be shielded.

The immunity applies in civil proceedings too. The general immunity in section 79D is not limited to criminal proceedings. It applies in civil proceedings unless a specific exception applies.

Forensic purpose test must be met before preliminary examination. Section 79F requires the party seeking disclosure to show a legitimate forensic purpose before the court will conduct a preliminary examination of the records under section 79G. This is a threshold gatekeeping requirement.

Example 1: Child witness with intermediary. In a criminal proceeding, a 7-year-old witness is prescribed by regulation as a person for whom an intermediary must be appointed. The court contacts the intermediaries administrator, who assesses available intermediaries. If a suitable intermediary is available and it is in the interests of justice, the court appoints the intermediary. The child gives evidence in the presence of the intermediary, who facilitates communication with the court and lawyers.

Example 2: Application for counselling records. In a sexual assault prosecution, the accused applies for access to the complainant's counselling records. The court applies the threshold test under section 79F: the accused must show the application is made for a legitimate forensic purpose. If the threshold is met, the court conducts a preliminary examination of the records (section 79G) without the accused or their counsel seeing the records. The court then decides whether to grant leave for disclosure (section 79H), weighing the forensic value against the harm to the complainant.

Example 3: Prior sexual history application. Counsel for the accused seeks to cross-examine the complainant about a prior sexual relationship with the accused to suggest consent. Counsel must apply for leave under section 77. The court hears the application (usually in the absence of the jury) and applies the criteria in section 78 to decide whether to grant leave.