Evidence Regulation 2012

The regulation revolves around four key concepts derived from the Evidence Act: (1) previous representation; (2) tendency evidence; (3) coincidence evidence; and (4) self‑incrimination certificates. Each concept gives rise to a distinct notice obligation, and the regulation imposes overlapping but distinct content requirements for each.

A “previous representation” is defined in the Evidence Act broadly: any representation of fact made by a person otherwise than in the course of giving evidence in the proceeding. It is the raw material for hearsay exceptions. The regulation requires the notice of previous representation to state “the substance of evidence of a previous representation that the notifying party intends to present” (s 5(1)(a)). It also requires the substance of all other relevant representations made by the same person, so far as known to the notifying party (s 5(1)(b)). This is a wide obligation: it forces the party to disclose not only the representation they intend to rely on, but any related representations that might undermine or contextualise it.

“Tendency evidence” is evidence of a person’s character, reputation or conduct that is adduced to prove that a person has or had a tendency to act in a particular way or to have a particular state of mind. The notice must state the substance of the evidence and, if it includes conduct, details of the date, time, place and circumstances, the names of persons who perceived the conduct, and in civil proceedings their addresses (s 8). “Coincidence evidence” is evidence of two or more related events that is adduced to prove that a person did a particular act or had a particular state of mind because of the improbability of the events occurring coincidentally. The notice must state the substance and details of each event, including the names of persons who perceived each event, and in civil proceedings their addresses (s 9).

“Self‑incrimination certificates” are issued under s 128 or s 128A of the Evidence Act when a witness claims the privilege against self‑incrimination and the court compels the witness to answer on condition that the answer and any further information obtained cannot be used against the witness in most proceedings. The regulation lists interstate provisions that are “prescribed” for the purpose of ss 128(14) and 128A(13) of the Act. This means a certificate issued under, for example, s 128 of the Evidence Act 1995 (NSW) or the equivalent Victorian or Tasmanian provisions, will be recognised in an ACT proceeding as having the same effect as an ACT certificate. Similarly, the regulation lists certain coronial provisions (Coroners Act 2009 (NSW) s 61; Coroners Act 2008 (Vic) s 57; Coroners Act 1996 (WA) s 47; and Evidence Act 1906 (WA) s 11) whose certificates are also prescribed. The cross‑recognition mechanism creates a national regime for compelled evidence given under self‑incrimination protection.

“Fingerprint evidence of identity” under ss 179 and 180 of the Act allows a police officer to give evidence by affidavit of fingerprints taken by another officer; the regulation says a form approved under s 15 is prescribed for those affidavits. The Minister may approve forms by notifiable instrument, and once approved those forms must be used.

The regulation directly affects any party to a civil or criminal proceeding in the ACT who intends to adduce hearsay (previous representation) evidence, tendency evidence, or coincidence evidence. It also affects any person who may claim the privilege against self‑incrimination and receive a certificate under s 128 or s 128A, and any police officer who provides an affidavit of fingerprint evidence under ss 179 or 180 of the Act.

In practice, the most significant burden falls on litigants and their legal representatives. For the prosecution in criminal proceedings, the regulation imposes detailed notice requirements that must be complied with before tendency or coincidence evidence can be led against an accused. For the defence, similar obligations apply if they wish to adduce such evidence. The regulation therefore affects both sides, though the practical consequences often differ: prosecution tendency evidence is common in sexual offence and domestic violence cases; defence character evidence may also fall under tendency. The requirement to disclose the substance of all other relevant representations (s 5(1)(b)) can be particularly onerous for a party who has gathered a large volume of documents from a party opponent or a third party.

The self‑incrimination provisions affect any witness in an ACT proceeding who may be compelled to give evidence that tends to incriminate them. If the court issues a certificate, that certificate is effective not only in the ACT but also, by virtue of the prescribed interstate provisions, in New South Wales, Tasmania, Victoria, Western Australia and Norfolk Island. The regulation thus creates a reciprocal recognition network that benefits witnesses who may face future proceedings in those jurisdictions. Conversely, if a certificate is issued under an interstate provision not listed in ss 11 or 12, it may not be recognised in the ACT, creating a risk for witnesses who rely on the certificate outside their home jurisdiction.

The regulation also affects the Minister for Justice, who has the power to approve forms under s 15. That power is delegated legislative authority: the Minister can unilaterally set the form of affidavits for fingerprint evidence and other matters, and those forms have mandatory legal effect once notified. Practitioners must monitor the notifiable instruments register for any new approved forms.

Finally, the regulation affects the court itself. In criminal proceedings, the court may make orders directing the notifying party to disclose the address of any person named in a notice of previous representation (s 7) or in a notice of tendency or coincidence evidence (s 10). This gives the court a discretionary power to protect the privacy or safety of witnesses while still enabling cross‑examination or subpoena. The order may be made “on the terms the court considers appropriate”, allowing for conditions such as non‑publication or limited disclosure.

The central duty imposed by the regulation is the duty to give notice that meets the prescribed content. A notifying party must, before adducing the evidence, serve a notice that includes the substance of the evidence, all other relevant representations by the same person, and detailed particulars of the circumstances in which each representation was made or each event occurred. In civil proceedings, addresses of every person involved must be stated. For hearsay evidence that relies on the unavailability of the maker of the representation (ss 63, 65 of the Act), the notice must additionally state “details of the facts on the basis of which it is alleged that the person … is not available” (s 5(3)). For evidence relying on s 64(2) (the “availability” exception for civil proceedings where it would cause undue expense or delay to call the maker), the notice must state “details of the facts that the party will rely on to establish the grounds” in s 64(2).

If the previous representation is in writing, the party must attach a copy of the document containing the representation to the notice (s 6(1)(a)). If a copy is attached, the notice may simply identify the representation in the copy rather than restating it (s 6(2)). This is a drafting efficiency but carries a risk: if the copy is illegible or incomplete, the notice may be defective.

The counterparty has a right to receive this information in sufficient detail to prepare a response. Notice enables the opponent to decide whether to object, to seek particulars, or to apply for an order excluding the evidence under the Act’s discretionary powers. In criminal proceedings, a party may apply to the court for an order directing disclosure of the address of a person named in a notice (ss 7, 10). This is a procedural right that may be used to locate witnesses for cross‑examination, but the court can impose protective terms.

A witness who claims the privilege against self‑incrimination has the right to apply for a certificate under s 128 or s 128A. Once issued, the certificate is a statutory protection: it prevents the evidence given under compulsion from being used against the witness in most subsequent proceedings. The regulation extends this protection across state and territory borders by prescribing equivalent interstate provisions. Thus a witness who receives an ACT certificate can rely on it in a New South Wales, Victorian, Tasmanian, Western Australian or Norfolk Island proceeding, because those jurisdictions’ provisions are listed. Conversely, a person holding a certificate issued under a listed interstate provision can rely on it in an ACT proceeding. The right is therefore broader than the ACT Act alone.

For police officers providing fingerprint evidence, the duty is to use the approved form. The regulation does not create a right to challenge the form; if a form is approved, it must be used. Failure to use the form presumably risks the affidavit being rejected as non‑compliant, though the court might still admit it under the Act’s discretion.

The regulation itself does not create any offences or prescribe monetary penalties. Its enforcement mechanism is indirect: non‑compliance with a notice requirement will, unless the court grants leave, result in the exclusion of the evidence. Section 67(4) of the Evidence Act provides that evidence of a previous representation may not be adduced unless notice has been given under s 67(2) (which the regulation implements) or the court otherwise orders. Similarly, s 97(2) and s 98(2) of the Act condition admissibility of tendency and coincidence evidence on notice having been given in accordance with regulations or the court’s direction. The sanction is thus a procedural bar, not a criminal penalty.

This indirect enforcement has practical teeth. A party that fails to give a compliant notice may lose the ability to adduce crucial evidence, potentially leading to a dismissal of the case or an inability to prove an element. In criminal proceedings, the prosecution’s failure to comply with notice requirements for tendency evidence could result in a directed acquittal on that count or the exclusion of highly prejudicial material that might have been central to the jury’s reasoning.

The note at the beginning of the republication states that “[a]t the republication date, the value of a penalty unit for an offence against this law is $110 for an individual and $550 for a corporation”. However, the regulation contains no offence provisions. That note is a standard legislative boilerplate applicable to any future amendment that might create an offence. As at the commencement date, there is no offence in this regulation. Accordingly, enforcement is entirely through the discretion of the trial judge to exclude evidence or grant leave. In practice, courts are reluctant to exclude evidence solely for a technical notice defect if the opponent suffered no prejudice, but the regulation’s requirements are detailed enough that multiple deficiencies could cumulatively persuade a court to exercise its discretion against the proponent.

For the self‑incrimination certificate provisions, enforcement is automatic: if a certificate is issued under a listed interstate provision, the ACT court must treat it as if issued under the ACT Act. There is no penalty for non‑recognition, but the court must apply the law correctly. Practitioners should ensure that a certificate purporting to be issued under a provision not listed may be challenged; the opponent can argue it is not recognised.

The regulation is directly linked to the Evidence Act 2011 (ACT), and must be read as part of that Act. Section 67, s 97, s 98, s 128 and s 128A of the Act each refer to “prescribed” requirements or “regulations”; the regulation supplies these. Without the regulation, the Act’s notice provisions would be effectively inoperative because they would lack the necessary detail.

The regulation also interacts with the Legislation Act 2001 (ACT). Notes are declared to be explanatory and not part of the regulation (s 4). The dictionary is part of the regulation (s 3). The Minister’s power to approve forms under s 15 is subject to the Legislation Act, s 255, and approved forms are notifiable instruments that must be published. The definition of “address” in the dictionary includes private, business or official address, and this definition is imported from the Legislation Act’s interpretive provisions.

Most significantly, the regulation lists provisions from other Australian jurisdictions as “prescribed” for the purposes of ss 128 and 128A of the Evidence Act. This creates a regime of reciprocal recognition of self‑incrimination certificates. The listed provisions are: Evidence Act 2004 (Norfolk Island) s 128; Coroners Act 2009 (NSW) s 61; Evidence Act 1995 (NSW) s 128; Evidence Act 2001 (Tas) s 128; Coroners Act 2008 (Vic) s 57; Evidence Act 2008 (Vic) s 128; Coroners Act 1996 (WA) s 47; and Evidence Act 1906 (WA) s 11. For s 128A certificates (which relate to evidence given in criminal proceedings by an “affected person”), the listed provisions are: Evidence Act 1995 (NSW) s 128A; Evidence Act 2001 (Tas) s 128A; and Evidence Act 2008 (Vic) s 128A. No provisions from South Australia, Queensland, the Commonwealth or the Northern Territory are prescribed. This means a certificate issued under those jurisdictions may not be automatically recognised in ACT proceedings, and vice versa. Practitioners should be alert to jurisdictional gaps.

The regulation also prescribes forms for fingerprint evidence under ss 179 and 180 of the Evidence Act. Those sections allow affidavits by police officers to prove the identity of a person by fingerprints taken by another officer. The regulation does not itself contain the forms; it only directs that an approved form under s 15 must be used. This interacts with the court’s rules on evidence: non‑compliant affidavits may be inadmissible unless the court dispenses with the form.

The Evidence Regulation 2012 was notified on 27 February 2012 and became effective on 1 March 2012. It was made as SL2012-6. Sections 1 (Name of regulation) and 2 (Commencement) commenced on the notification date (27 February 2012) under section 75(1) of the Legislation Act. The remainder commenced on 1 March 2012, coinciding with the commencement of the Evidence Act 2011 (see section 2 of the regulation and CN2012-4). Section 2 of the regulation was subsequently omitted by an editorial change under section 89(4) of the Legislation Act 2001, because the commencement information is now provided by the republication date and endnotes.

As at the republication date (1 March 2012, R1), the regulation had not been amended. The amendment history endnote confirms that no amendments have been made. There are no uncommenced amendments listed. The regulation is therefore a static instrument that has not changed since its original commencement. However, practitioners must check the ACT legislation register for any later amendments that might have occurred after the republication date. The regulation could be amended by subsequent subordinate legislation, and the forms approved under s 15 may change from time to time via notifiable instruments.

The regulation itself does not cite any court decisions, and the endnotes do not refer to any litigation history. As a subordinate procedural regulation, it is unlikely to be the subject of standalone litigation. However, the notice requirements it prescribes are regularly considered in ACT courts in the context of admissibility disputes under the Evidence Act. Cases may turn on whether a notice complied with the regulation’s content mandates, such as whether sufficient details of circumstances were provided, whether the substance of all other relevant representations was disclosed, or whether the notice adequately stated facts of unavailability.

For example, if a party in a criminal trial attempts to adduce hearsay evidence under s 65 (the exception for unavailable witnesses), the court may examine the notice to see if it states “details of the facts on the basis of which it is alleged that the person … is not available” (s 5(3)). A sparse notice might lead the court to exclude the evidence, or to grant leave on condition that further particulars be provided. Similarly, if a party uses an outdated or non‑approved form for a fingerprint affidavit, the court may refuse to accept the affidavit.

The regulation’s interaction with the uniform evidence law also means that decisions from other uniform evidence jurisdictions (New South Wales, Tasmania, Victoria, Norfolk Island) interpreting similar notice provisions may be persuasive in the ACT. The regulation mirrors the notice content requirements of the NSW Evidence Regulation 2015 (now repealed) and equivalent instruments. Practitioners should be aware of case law from those jurisdictions, even though it is not cited in the regulation.

Several traps for unwary practitioners arise from this regulation. The most common is the failure to include “the substance of all other relevant representations made by the person who made the previous representation” in the notice (s 5(1)(b)). This is a positive obligation to disclose any other representations by that person that are relevant, even if they are adverse to the notifying party’s case. The obligation extends “so far as they are known to the notifying party”. If the party does not conduct reasonable inquiries, they may later be confronted by an objection that they failed to disclose a representation that they ought to have known. This can be particularly problematic in large document productions where a witness has made multiple statements.

Another trap is the requirement in civil proceedings to provide “the address of each person” mentioned in the notice (ss 5(1)(c)(iii), 8(b)(iii), 9(b)(iii)). The dictionary defines “address” to include private, business or official address. In a civil proceeding, the notifying party must disclose the private address of a witness even if that witness is reluctant to have their address known. The counterparty may then use that address to serve subpoenas or conduct investigations. However, in criminal proceedings, there is no automatic disclosure of addresses; instead, a party may apply to the court for an order directing disclosure (ss 7, 10). A lawyer preparing a notice in a criminal proceeding might inadvertently include addresses voluntarily, which could be a tactical error or a privacy breach.

For hearsay evidence that relies on the unavailability of the maker, the notice must state “details of the facts on the basis of which it is alleged that the person … is not available” (s 5(3)). A bare assertion that the person is dead or cannot be found will not suffice. The party must set out the specific facts: for example, that the person is deceased with a death certificate annexed, or that despite diligent search they cannot be located. If the facts are weak, the court may later exclude the evidence. Similarly, for evidence under s 64(2) (civil proceedings where it would cause undue expense or delay to call the maker), the notice must state the grounds (s 5(5)). This requires an evidentiary basis, not a mere submission.

For written previous representations, the party must attach a copy of the document (s 6(1)). If the document is lengthy and only part is relevant, the party may attach only the relevant part, but must identify the document unless the identity is apparent from the copy. If the copy is illegible, the notice may be defective. Also, the notice may “state in the notice, or in the copy … the representation” that the party intends to present (s 6(2)). This cross‑referencing can be efficient, but if the copy is not properly marked, the opposing party may not know which part is being relied on.

The self‑incrimination certificate provisions are a potential trap for interstate practitioners. The regulation lists only specific provisions from New South Wales, Tasmania, Victoria, Western Australia and Norfolk Island. Certificates issued under the Commonwealth Evidence Act 1995, or under legislation from Queensland, South Australia or the Northern Territory, are not prescribed. A witness holding a certificate from those jurisdictions cannot rely on it in the ACT unless the ACT court exercises its residual discretion. Similarly, an ACT certificate may not be recognised in those jurisdictions. Litigants should check whether the jurisdiction in which they may later be prosecuted has a reciprocal prescription.

Finally, the regulation empowers the Minister to approve forms for fingerprint evidence (s 15). If no form has been approved, it may be impossible to comply with ss 13 and 14, which state that a form approved under s 15 is prescribed. This would create a gap: the regulation purports to require a form, but if none exists, the requirement is inoperative. Practitioners should check the ACT legislation register for any approved forms under this regulation. At the republication date, it is not stated whether any forms had been approved; the regulation itself does not contain any forms.

Compliance with the Evidence Regulation 2012 requires careful attention to the content of notices and the use of approved forms. The steps are as follows:

First, determine whether the evidence you intend to adduce falls within the categories requiring notice: hearsay evidence under s 67 of the Act (previous representations), tendency evidence under s 97, or coincidence evidence under s 98. If so, you must give a written notice. The Act does not specify a time limit, but notes should be given within a reasonable time before the hearing, and preferably before the trial or the date set for the admission of evidence. Check any court directions or practice notes for specific timeframes.

Second, prepare the notice using the prescribed content. For a previous representation notice, include: the substance of the evidence of the representation; the substance of all other relevant representations by the same person known to you; and full details of the date, time, place and circumstances of each representation, the names of the persons by whom and to whom made, and in civil proceedings their addresses. If relying on an unavailability exception (ss 63, 65), include the facts establishing unavailability. If relying on s 64(2), include the grounds of undue expense or delay.

Third, if the representation is in writing, attach a copy of the document or the relevant part. Ensure the copy is legible and clearly identified. If you attach the copy, you can simply state in the notice which part of the copy is the intended evidence, rather than reproducing it in the notice text.

Fourth, for tendency or coincidence evidence notices, include: the substance of the evidence; details of the conduct or event (date, time, place, circumstances, and names of persons who perceived it); and in civil proceedings the addresses of those persons. If the evidence consists of multiple instances, each must be particularised.

Fifth, serve the notice on all other parties. There is no prescribed form for the notice itself (unless the Minister approves one), but the regulation specifies mandatory content. Use a clear heading such as “Notice of Previous Representation” and ensure the content is readily identifiable.

Sixth, if you are in a criminal proceeding and you receive a notice from the other side containing addresses, you may consider applying for a court order directing the notifying party to disclose addresses (if none were given) or to protect the addresses. Conversely, if you are the notifying party and you are concerned about witness safety, you may seek the court’s direction before including addresses in the notice.

Seventh, for self‑incrimination certificates, if you represent a witness who has been compelled to give evidence under s 128 or s 128A, ensure that any certificate issued is properly documented. If the witness may face proceedings in another jurisdiction, check whether that jurisdiction’s equivalent provision is listed in ss 11 or 12 of the regulation. If not, advise the witness that the certificate may not be recognised interstate.

Eighth, for fingerprint evidence, use the approved form. If no form has been approved, the regulation’s prescription may be inoperative; in that case, revert to the common law rules for affidavits, but be prepared to argue compliance if challenged.

Ninth, maintain a record of all notices served, including proof of service. If the opposing party complains of insufficient detail, be ready to provide further particulars voluntarily or seek court directions.

Finally, monitor the ACT legislation register for any new approved forms or amendments to the regulation. The regulation may have been amended after the republication date, and the Minister may approve forms that alter compliance obligations. Check also for any form‑specific notifiable instruments.