Evidence Regulations 2019

The Regulations revolve around a cluster of recurring procedural concepts: prescribed content, standard forms, balancing disclosure with privacy/safety, and recognising State/Territory counterpart provisions.

Prescribed content for notices

• Notices relating to hearsay exceptions (previous representations) must set out the substance of the representation and the substance of all other relevant representations made by the same person, together with particulars of date, time, place, circumstances and names of persons involved. In civil proceedings the notice must include the address of each person named, “so far as the addresses are known” (regulation 6(1)(a)-(c)(iii)). If the representation is in writing, a copy or relevant portion must be attached and identified (regulation 6(4)).
• Where reliance will be placed on specific availability or unavailability exceptions in the Evidence Act (reg 6(2) and (3)), the notice must state the particulars of facts the party will rely on to establish unavailability or other grounds (regulation 6(2)-(3)). The Regulation identifies particular subsections of the Act (for example, ss 63(2)(a)-(b), 65(2)(a)-(d), 65(3)(a)-(b), 65(8)(a)-(b), 64(2)(a)-(b)) for which specific particulars must be given.
• Tendency and coincidence notices must state the substance of the evidence to be adduced and give particulars of date, time, place, circumstances and names of perceivers; again in civil proceedings the addresses of perceivers must be given if known (regulation 8(1)-(2)).

Standard forms and affidavits

• Form 1 is a certificate under section 128 or 128A of the Evidence Act (regulation 10 and Schedule Form 1). The certificate structure and the note reproducing the statutory protection language are included (Schedule 1, Form 1 and the appended quotes of ss 128(7) and 128A(8)).
• Form 2 is a certificate of convictions, acquittals and other judicial proceedings for use under s 178 (regulation 12 and Schedule Form 2). The form specifies who may issue the certificate (judges, registrars, proper officers of courts) and the particulars to be set out.
• Forms 3 and 4 are prescribed affidavits for fingerprint identity evidence by State/Territory police and Australian Federal Police officers respectively (regs 13-14 and Schedule Forms 3-4). The affidavits set out a sequence of factual statements required , identification of the deponent as a fingerprint expert, comparison of cards, that the prints are identical, assertion of convictions from police records and annexure of certified copies (Forms 3(1)-(7); 4(1)-(7)).

Disclosure balancing in criminal proceedings

• The Regulations grant courts power to direct disclosure of addresses named in previous representation (regulation 7) and tendency/coincidence notices (regulation 9) on application by a party in a criminal proceeding. The court must be satisfied the address is relevant and that disclosure either does not present a reasonably ascertainable risk to welfare/physical safety or that interests of justice outweigh any such risk (regs 7(1)(a)-(b), 9(1)(a)-(b)). When weighing interests of justice, the court must have regard to the witness’s right to privacy and the accused’s right to prepare their defence (regs 7(2)(a)-(b), 9(2)(a)-(b)). The Regulations explicitly permit the court to impose conditions on a disclosure direction (regs 7(3), 9(3)).

Links to other jurisdictions and instruments

• The Regulations prescribe certain State and Territory provisions for the purpose of sections 128(12) and 128A(11) of the Evidence Act (regulation 11). They list the relevant provisions in Norfolk Island, Tasmania, Western Australia, Australian Capital Territory, New South Wales and Northern Territory (regulation 11(1)-(2)). The Endnotes state the instrument will sunset on 26 November 2029 pursuant to the Subordinate Legislation Act 1994 (Endnotes 1).

Operational consequences

• The Regulations create a compliance template: parties must include specified particulars and attach documents where required, judicial officers have express but qualified powers to direct disclosure of addresses (subject to balancing tests), and courts and parties have standardised documents to streamline authentication of privilege certificates, convictions and fingerprint evidence.

The Regulations affect multiple participants in litigation and court administration by imposing documentary and procedural requirements. The principal affected actors are:

• Parties to proceedings (plaintiffs, defendants, prosecutors, respondents): Parties who intend to adduce evidence of previous representations, tendency evidence or coincidence evidence must prepare notices complying with the specified content requirements (regulations 6 and 8). That affects legal practitioners preparing evidence applications as well as self‑represented litigants.
• Witnesses and persons named in notices: Persons who made or were addressed by a previous representation, or who perceived conduct/events relied on under tendency or coincidence rules, can have their names and, in civil proceedings, addresses required to be included in notices (regs 6(1)(c)(ii)-(iii); 8(1)(b)(ii)-(iii); 8(2)(b)(ii)-(iii)). In criminal proceedings their addresses may be the subject of a court direction to disclose on application (regs 7 and 9). The Regulations therefore implicate privacy and safety interests of witnesses, with explicit statutory recognition of those interests (regs 7(2) and 9(2)).
• Courts and judicial officers: Courts are given express procedural functions , they may direct disclosure of addresses in criminal proceedings where statutory tests are met, and they are enabled to authenticate certificates and records by the prescribed forms (regs 7, 9, 10, 12, 13, 14 and Schedule 1). The Regulations also enable courts to set conditions on disclosure directions (regs 7(3), 9(3)). Courts therefore decide balancing questions between relevance and safety/privacy for address disclosure, and decide admissibility and procedural compliance with the Act where the Act refers to the forms.
• Registrars, prothonotaries and proper officers of courts: Form 2 contemplates that registrars, prothonotaries or other “proper officers” may certify convictions and other judicial records (Schedule 1 Form 2). Those officers’ records and signatures become admissible evidence under s 178 via the prescribed form (regulation 12).
• Police officers and fingerprint examiners: State and Territory police and Australian Federal Police members designated as fingerprint experts are affected because the Regulations prescribe the form of affidavit they must use to prove fingerprint identity under ss 179-180 (regs 13-14 and Schedule Forms 3-4). The forms require particular factual content and annexures (Forms 3 and 4 paragraphs 1-7).
• Prosecutors and defence counsel in criminal cases: They will be more likely to apply for directions under regs 7 and 9 to obtain addresses necessary to prepare a defence or to protect complainants/witnesses, and must frame such applications in the terms the Regulations require (relevance and the welfare/safety and interests of justice balancing).
• Court administrators and records offices: Standardising forms and prescribed annexures affects how court records are made, kept and certified. Attachment and identification of documents (for instance a copy of a written previous representation under reg 6(4)) requires physical or electronic processes to authenticate and link attachments.

Who bears the compliance costs

• The primary compliance cost falls on the notifying party preparing notices (reg 6 and 8) and on officers preparing certificates or affidavits (Schedule Forms), who must ensure particulars, annexures and signatory authority. The Regulations place the burden of providing particulars and producing documents on the notifying party rather than the receiving party or the court, although the court has power to order further disclosure of addresses in criminal cases (regs 7 and 9).
• Witnesses named in notices may incur indirect costs: privacy risks and potential safety concerns that may result in applications for non‑disclosure or protective conditions (regs 7(1)(b)(i)-(ii); 9(1)(b)(i)-(ii)).

Geographical and jurisdictional scope

• The Regulations operate in Victoria, but they interact with State and Territory evidence provisions by prescribing which State/Territory provisions correspond for the purposes of sections 128(12) and 128A(11) of the Evidence Act (regulation 11). Endnotes indicate revocation of prior Victorian regulations and a sunset schedule (Endnotes 1).

The Regulations create obligations on parties to supply specific information in notices, and they confer rights (and conditional powers) on courts and parties. The duties and rights are principally procedural.

Duties imposed on notifying parties

• Content obligations for notices of previous representation: A notifying party must state the substance of the previous representation it intends to adduce and the substance of all other relevant representations by the same person known to the notifying party (regulation 6(1)(a)-(b)). The notice must include particulars of date, time, place and circumstances of the representations and the names of persons by and to whom representations were made; in civil proceedings the addresses of those persons must be stated if known (regulation 6(1)(c)(i)-(iii)). If the previous representation relied on is in writing, a copy or the relevant portion must be attached and the document identified unless the identity is apparent from the copy attached (regulation 6(4)). If a copy is attached, specifying the representation may be satisfied either in the notice or in the attached copy (regulation 6(5)).
• Additional particulars where specific statutory exceptions are relied upon: If relying on particular unavailability or exception subsections in the Evidence Act, the notice must state particulars of the facts supporting the claimed unavailability or other grounds listed (regulation 6(2)-(3)). The Regulation explicitly enumerates which Act subsections require these particulars (e.g. ss 63(2)(a),(b); 64(2)(a),(b); 65(2)(a)-(d); 65(3)(a),(b); 65(8)(a),(b); see reg 6(2)-(3)).
• Content obligations for tendency and coincidence notices: Tendency notices must state the substance of the evidence to be adduced and particulars of dates, times, places, circumstances and names of perceivers; in civil proceedings addresses of those perceivers must be provided if known (regulation 8(1)(a)-(b)(i)-(iii)). Coincidence notices have equivalent content requirements for the occurrence of two or more events (regulation 8(2)(a)-(b)(i)-(iii)).

Rights and powers for courts

• Disclosure orders limited by statutory tests: On application by a party in a criminal proceeding, the court may direct a notifying party to disclose the address of any person named in a previous representation notice or in a tendency/coincidence notice if the court is satisfied the address is relevant to the offence and either disclosure is not likely to present a reasonably ascertainable risk to welfare or physical safety or, having regard to specified matters, the interests of justice outweigh any such risk (regs 7(1)-(2); 9(1)-(2)). The court may impose conditions on any direction (regs 7(3); 9(3)).
• Mandatory regard to competing rights: When weighing whether to order disclosure, the court must have regard to the right to privacy of the witness and the right of the accused to prepare for trial (regs 7(2) and 9(2)). The Regulations also include a note pointing to section 14 of the Victims' Charter Act 2006 concerning victims’ privacy, indicating a legislative context for privacy considerations (regs 7 and 9 notes).

Prescribed functions for officers and courts

• Form 1 certificates: A court may certify that evidence by a named witness on specified dates is evidence or information to which s 128(7) or s 128A(8) applies; the certificate must follow Form 1 (regulation 10 and Schedule Form 1). The certificate requires authentication by the court or proper officer and attachment of the record(s) (Schedule Form 1).
• Form 2 certificates: Judges, registrars and proper officers are authorised to certify convictions, acquittals and other judicial proceedings according to the court’s records, using Form 2 (regulation 12 and Schedule Form 2).
• Forms 3 and 4 affidavits: State/Territory police and AFP fingerprint experts must use the prescribed affidavit forms to prove fingerprint identity under the relevant Evidence Act provisions (regs 13-14 and Schedule Forms 3-4). The forms specify a set of statements the deponent must swear or affirm.

Interaction with State/Territory law and cross‑jurisdictional reach

• Regulation 11 prescribes particular State/Territory statutory provisions that correspond to provisions in the Evidence Act for the purposes of cross‑referencing s 128(12) and s 128A(11), which affects how privilege and related protections may be recognised in multi‑jurisdictional contexts (regulation 11(1)-(2)).

Procedural discretion and conditional obligations

• Courts retain discretion to order additional disclosure but can impose conditions; the Regulations therefore create duties of disclosure that are conditional on a judicial finding of relevance and a balancing exercise (regs 7 and 9). The Regulations require parties to discharge the initial duty to set out particulars and attach documents where necessary (regs 6 and 8).

The Regulations themselves contain no standalone penalty provisions. They operate as subordinate legislative prescriptions under section 197 of the Evidence Act 2008 (regulation 2), prescribing form and content for notices, certificates and affidavits whose legal significance is tied to procedures and admissibility rules in the Evidence Act. Enforcement and consequences therefore flow principally through the Evidence Act and court processes rather than from any penal clause inside the Regulations.

Mechanisms by which compliance is enforced or has consequences

• Admissibility and procedural consequences under the Evidence Act: The Regulations are expressed “for the purposes of” particular sections of the Evidence Act (see regs 6, 8, 10, 12-14), so compliance,or failure to comply,with the prescribed forms and particulars will be assessed in the context of the Act’s provisions that require or permit notices, certificates and affidavits. For example, a notice given under s 67(1) of the Act must meet the content requirements set out in reg 6; failure to provide those particulars may affect the court’s procedural handling of the hearsay exception application under the Act. The Regulations do not specify a penalty for non‑compliance; rather, the legal consequence is likely to be procedural: the court may refuse to admit evidence or give the party leave to rectify the notice in accordance with the Evidence Act and the court’s powers.
• Judicial discretion and conditional orders: The Regulations expressly give courts the power to direct disclosure of addresses and to set conditions on any direction (regs 7(1)-(3) and 9(1)-(3)). Where a court directs disclosure, compliance with that order may be enforced by the usual mechanisms available to courts (contempt, directions, and case management powers). The Regulations do not themselves specify enforcement penalties, but provide the framework that activates judicial power to require compliance.
• Reliance on prescribed forms for authentication: Where a certificate or affidavit follows the prescribed form (Schedule Forms 1-4) it is likely to meet statutory evidentiary thresholds under corresponding sections of the Evidence Act (for example, s 178 certificates of convictions are catered for by reg 12 and Form 2). Conversely, departure from the prescribed form may give rise to objections about authenticity or sufficiency, to be resolved by the court.

No express penal sanctions in the Regulations

• The instrument includes no fines, offences or administrative penalties. Its leverage arises from its role as a specification of procedural prerequisites to the operation of provisions in the Evidence Act. Any sanction for non‑compliance will therefore be the product of court rules, the Evidence Act and case management practices, not an express fine or criminal offence in the Regulations.

Practical enforcement risks for practitioners

• Failure to attach a required document (for example, a written previous representation under reg 6(4)) or to state required particulars may require re‑service or amendment, and may lead to adverse rulings on admissibility applications. Where a party applies for a disclosure order (regs 7 and 9) and the court grants it, the notifying party’s refusal to comply with the direction can trigger contempt or other court enforcement measures, but those measures are general judicial powers rather than penalties specified in the Regulations themselves.

Interaction with privacy and protective frameworks

• The Regulations require courts to consider witness privacy and safety when deciding whether to order disclosure (regs 7(2); 9(2)) and note the Victims' Charter Act 2006 s 14 regarding victims’ privacy. The risk to a witness arising from disclosure may therefore be treated as a factor that limits enforcement of disclosure obligations.

The Regulations are explicitly made under s 197 of the Evidence Act 2008 and operate in direct service of that Act, prescribing form and content for records and notices the Act contemplates (regulation 2). They therefore function as subordinate, instrumentally‑linked rules that the Evidence Act imports by reference.

Direct textual interactions

• Evidence Act 2008 cross‑references: The Regulations explicitly refer to multiple sections of the Evidence Act when prescribing content. Examples:
  • Notices under s 67(1) (previous representations) are addressed in regulation 6.
  • Tendency rule (ss 97 and 99) and coincidence rule (ss 98 and 99) notices are addressed in regulation 8.
  • Certificates under ss 128 and 128A are provided for by regulation 10 and Schedule Form 1.
  • The prescribed certificate for convictions under s 178 is set out in regulation 12 and Schedule Form 2.
  • Affidavits for fingerprint evidence intended to satisfy ss 179 and 180 are prescribed in regulations 13-14 and Schedule Forms 3-4.
• The Regulations thus operationalise the procedural steps the Evidence Act anticipates. The Regulations state “for the purposes of” various sections of the Act, linking obligation and admissibility directly to the Act’s provisions (see regs 6, 8, 10, 12-14).

Interaction with State and Territory evidence law

• Regulation 11 prescribes particular State and Territory provisions for the purposes of s 128(12) and s 128A(11) of the Evidence Act. By listing corresponding provisions in Norfolk Island, Tasmania, Western Australia, the ACT, NSW and the Northern Territory, the Regulations create a statutory bridge for cross‑jurisdictional treatment of privilege against self‑incrimination and related protections (regulation 11(1)-(2)). This prescriptive list determines which external statutory provisions are treated as “State or Territory provisions” for the Evidence Act’s cross‑reference points.

Privacy and victims’ protections

• The Regulations require courts to have regard to witnesses’ privacy and the accused’s right to prepare a defence when deciding to order disclosure of addresses in criminal proceedings (regs 7(2) and 9(2)). Both regulations include a note pointing to section 14 of the Victims' Charter Act 2006 on victims’ privacy, thereby embedding an external statutory consideration into judicial balancing (regs 7 and 9 notes). The Regulations therefore require courts to integrate privacy standards from another statute when exercising disclosure powers under these Regulations.

Subordinate instruments and sunset

• The Endnotes indicate the Regulations will sunset on 26 November 2029 pursuant to section 5 of the Subordinate Legislation Act 1994 (Endnotes 1). That interaction imposes a temporal limit on the Regulations’ operation and requires future legislative attention if continuity is desired.

Court procedure and contempt powers

• While the Regulations themselves do not set penalties, they create obligations that can be enforced through court powers that derive from general court rules and the Evidence Act. For example, a disclosure direction under regs 7 or 9 will be enforceable under the court’s ordinary enforcement powers, which sit outside the Regulations but interact with them practically.

Administrative law and recordkeeping

• By prescribing who may issue or certify certain documents (Schedule Form 2 lists judges, registrars, prothonotaries and “proper officers”), the Regulations interact with court administrative practice and the law governing public records and authentication. The form requirements may therefore affect recordkeeping, authentication and officers’ duties within the court administration framework.

The Regulations are relatively new, made on 26 November 2019 and coming into operation on 7 December 2019 (Endnotes 1; reg 3). They expressly revoke the prior Evidence Regulations 2009 and two amending statutory rules (regulation 4 lists S.R. Nos 162/2009, 149/2012 and 46/2013 as revoked instruments). The Endnotes provide that there are no amendments to the Evidence Regulations 2019 as at the Version date (Version No. 001, as at 7 December 2019) (Endnotes 2 and 3).

Key points in the instrument’s amendment and supersession history as recorded in the text:

• Revocation of earlier rules: Regulation 4 revokes the Evidence Regulations 2009 and two later amending instruments (Evidence Amendment Regulations 2012 and 2013). The Explanatory details in Endnotes 4 identify those specific instruments and their S.R. numbers (Endnotes 4(1)-(3)).
• No subsequent amendments recorded: The Table of Amendments notes there are no statutory rules, subordinate instruments or Acts that have amended the Evidence Regulations 2019 as at the publication stated (Endnotes 2).
• No amendments not in operation: Endnotes 3 reports there are no amendments “Not in Operation” as of the publication date.

Sunset provision

• The Endnotes state the Evidence Regulations 2019 “will sunset 10 years after the day of making on 26 November 2029 (see section 5 of the Subordinate Legislation Act 1994)” (Endnotes 1). The sunset imposes an expiry date unless the Regulations are remade, extended or replaced. Practitioners should note the ten‑year horizon for review or replacement.

Style and interpretative notes

• The Endnotes reproduce interpretative guidance derived from the Interpretation of Legislation Act 1984 (ILA) about headings, notes, punctuation and other matters (Endnotes 1). This affects how the Regulations’ headings and notes are to be treated as forming part of the Statutory Rule, and it can be relevant for interpreting whether forms, notes and examples are to be taken as part of the instrument.

Implication for practice

• Because these Regulations replace prior forms and content requirements, any changes in wording or requirements between the old and new Regulations will be relevant for practice. The text presented does not list the earlier forms or compare differences, but it does make clear the 2019 Regulations stand as the current prescriptive schedule and will remain so until amended or until the sunset date unless remade.

The text supplied does not identify any reported litigation interpreting the Evidence Regulations 2019. The instrument is procedural and was brought into force on 7 December 2019 (regulation 3 and Endnotes 1). The Endnotes confirm there are no recorded amendments and no entries in the Table of Amendments as at the version date (Endnotes 2-3), which suggests the Regulations were newly enacted and had not been the subject of subsequent statutory amendment when this version was published.

What the Regulations themselves reveal that is relevant to litigation practice

• The Regulations interact with litigation practice by prescribing notice content for hearsay exceptions (regulation 6), tendency/coincidence evidence (regulation 8) and by setting out the form of certificates and affidavits (regs 10-14; Schedule Forms). Litigation involving the admissibility of hearsay, tendency or coincidence evidence will therefore engage these Regulations. Any judicial determination about whether a notice complies with reg 6 or reg 8, or whether a certificate or affidavit is in proper form (Schedule Forms 1-4), could generate dispute; however, the document does not record specific cases or authority decided on those points.
• The Regulations grant courts discretion to order disclosure of addresses in criminal proceedings when satisfied of relevance and after balancing safety/privacy against the accused’s need to prepare a defence (regs 7 and 9). This creates a predictable locus for contested pre‑trial applications , applications to disclose addresses and applications to withhold disclosure or impose protective conditions , but the Regulations do not report case law on how courts have exercised this power.

Practical indicators about likely litigation issues (based on the Regulations’ content)

• Compliance disputes over the sufficiency of notices: A common litigation point is whether a notice sufficiently states “the substance” and “particulars” required by regs 6 and 8. Courts will be asked to determine whether the level of detail provided is adequate for the opposing party to respond and for the court to conduct the necessary admissibility assessment under the Evidence Act.
• Privacy and disclosure balancing: The court’s power under regs 7 and 9 to order disclosure of addresses in criminal proceedings is defined by a balancing test, and litigation is likely to arise around whether disclosure presents a “reasonably ascertainable risk” to welfare or safety, and whether the “interests of justice” outweigh such a risk. The Regulations instruct courts to consider witness privacy and the accused’s right to prepare a defence (regs 7(2); 9(2)), and these competing interests will be litigated in contested pre‑trial hearings.
• Authentication and form challenges: Parties may litigate over whether certificates and affidavits conform to the prescribed forms (Schedule Forms 1-4), particularly where the source of a document or the authority of the signatory is in question.

Absence of recorded litigation in the instrument

• Because the Regulations contain no entries in a Litigation History section or notes of judicial interpretation, practitioners dealing with contested issues must rely on the Evidence Act’s substantive provisions and general procedural law, applying the Regulations’ specified content. Any authority generated after the date of the instrument must be checked in current law reports and court databases.

The Regulations are precise in language and create several practical pitfalls for practitioners and parties. The following are concrete, source‑grounded “gotchas” drawn directly from the text.

1. “Substance” requirement is distinct from summary

• Notices must state “the substance” of the representation or evidence intended to be adduced (regulation 6(1)(a); regulation 8(1)(a) and 8(2)(a)). Simply giving a bare summary label or asserting an issue may not meet the requirement; the Regulations require the actual substance of the representation or evidence, and in practice this demands enough detail for opposing parties and the court to understand the content to be led.

2. All other relevant representations must be disclosed (previous representations)

• Regulation 6(1)(b) obliges the notifying party to state the substance of “all other relevant representations made by the person who made that previous representation, so far as they are known to the notifying party.” That is a potentially onerous duty of enquiry: parties must search for and disclose not only the particular representation relied on but other relevant statements by the same person that they know about. Failure to do so may be criticised.

3. Attachment requirement for written representations and identity of document

• If the previous representation is in writing, a copy (or relevant portion) must be attached (regulation 6(4)(a)), and the document must be identified unless its identity is apparent on the face of the attached copy (regulation 6(4)(b)). A practice trap is failing to attach the relevant page/portion or failing to identify the document, which the Regulation treats as a distinct requirement.

4. Particulars required when relying on unavailability or other exceptions

• When the notifying party intends to rely on specific subsections (for example, s 63(2)(a) or s 65(2)), the notice must “state particulars of the facts” upon which the party relies to allege unavailability (regulation 6(2)). An unelaborated assertion that a witness is “unavailable” without factual particulars will be insufficient under the Regulation.

5. Addresses required in civil proceedings but subject to balancing in criminal proceedings

• In civil proceedings the address of persons named must be included “so far as the addresses … are known” (regulation 6(1)(c)(iii); regulation 8(1)(b)(iii) and 8(2)(b)(iii)). In criminal proceedings, however, addresses are not to be provided automatically; they require a court order and the court must be satisfied of relevance and carry out the safety/privacy balancing test (regs 7 and 9). The difference in regime between civil and criminal contexts is a practical hazard for practitioners who may forget that criminal cases demand an application and judicial decision before address disclosure.

6. Court direction subject to conditions

• Any direction to disclose an address is “subject to such conditions (if any) as the court thinks fit” (regs 7(3) and 9(3)). Practitioners must be ready to negotiate or litigate the content of protective conditions (for example, redaction, limited inspection or supervised access).

7. Privacy and victims’ provisions to be considered

• The Regulations require courts to “have regard to” the right to privacy of the witness and the accused’s right to prepare properly for trial when weighing disclosure (regs 7(2) and 9(2)). The Regulations also explicitly note s 14 of the Victims’ Charter Act 2006. Failure to address these statutory considerations in an application for disclosure will likely undermine the application.

8. Standard forms require particular signatures and authorities

• Form 2 sets out who may certify convictions and other judicial records, including judges, prothonotaries, registrars and “proper officers” (Schedule Form 2). A certificate signed by an unauthorised person or lacking proper authentication may be vulnerable to objection.

9. Fingerprint affidavit content is formulaic and sequential

• Forms 3 and 4 require a fingerprint expert to swear or affirm a sequence of factual statements, including that the fingerprints are identical and that certified copies or certificates of conviction are annexed (Schedule Forms 3-4, paragraphs 1-7). Omitting an annexure or failing to identify the cards precisely can undermine the affidavit’s evidentiary value.

10. “So far as known” qualifications

• Several provisions qualify obligations with “so far as … known to the notifying party” (regulation 6(1)(c)(iii); regulation 8(1)(b)(iii) and 8(2)(b)(iii)). That qualification means a party should document steps taken to ascertain addresses or other particulars; ambiguous or unrecorded enquiries may be criticised if the party later claims unawareness.

11. Certificates under s 128/128A: attachment and authentication requirement

• Form 1 states a transcript or record of the evidence “is to be attached to this certificate, and duly authenticated by the court or its proper officer” (Schedule Form 1). Failure to attach and authenticate the record may leave the certificate defective for the purpose the Evidence Act contemplates.

12. Regulatory sunset

• The Endnotes state the Regulations will sunset ten years after making (26 November 2029) (Endnotes 1). Practitioners relying on these precise forms and content should note the temporal limit and anticipate potential revision or replacement before that date.

13. No express penalty in the Regulations

• Because the Regulations do not set penalties, the practical “penalty” for non‑compliance will be procedural: evidentiary objections, adjournments, or adverse rulings. Parties should not assume technical non‑compliance will be met by a monetary fine; instead, it will likely affect admissibility or case management.

This section sets out step‑by‑step, source‑grounded practical measures a practitioner or party should take to comply with the Regulations when preparing notices, certificates or affidavits.

Notices of previous representation (regulation 6)

• Begin by identifying each previous representation you intend to adduce. For each representation, record:
  • The substance of the representation (reg 6(1)(a)). Draft the actual content to be adduced, not merely a label.
  • The substance of all other relevant representations made by the same person known to you (reg 6(1)(b)). Conduct and record reasonable searches of your file and your client’s information sources for additional relevant statements to satisfy the “so far as they are known” test.
  • Particulars required under reg 6(1)(c): date, time, place, circumstances in which each representation was made; names of persons by whom and to whom each representation was made; and, in civil proceedings, addresses of those persons if known (reg 6(1)(c)(i)-(iii)).
• If you intend to rely on a specific statutory ground for admitting hearsay (for example, a subsection listed in reg 6(2) or reg 6(3)), set out particulars of the facts that demonstrate the ground (reg 6(2)-(3)). Draft factual allegations and supporting material that demonstrate unavailability when required.
• If the representation is in writing, attach a copy or relevant part of the document to the notice and identify the document unless its identity is apparent from the copy (reg 6(4)(a)-(b)). If attaching a document, ensure it is clearly labelled and that references in the notice point to the annexure.
• If you attach documents, ensure the notice cross‑references the annexures and specifies whether the representation relied upon is in the notice or in the attached document (reg 6(5)).
• Keep a contemporaneous file note of searches and enquiries you undertook to find addresses or additional representations to support a later assertion that an address was not known.

Tendency and coincidence notices (regulation 8)

• For tendency evidence (s 97/99) and coincidence evidence (s 98/99):
  • State the substance of the evidence to be adduced (reg 8(1)(a); reg 8(2)(a)).
  • Provide particulars of date, time, place and circumstances for each conduct or event (reg 8(1)(b)(i); reg 8(2)(b)(i)).
  • Provide the names of each person who perceived the conduct or events and, for civil proceedings, their addresses if known (reg 8(1)(b)(ii)-(iii); reg 8(2)(b)(ii)-(iii)).
• Make a clear and intelligible map of the evidence so the opposing party can identify what is relied on, and the court can perform the necessary admissibility assessment.

Address disclosure in criminal proceedings (regs 7 and 9)

• If you need an address identified in a previous representation, tendency or coincidence notice in a criminal proceeding, prepare a formal application to the court seeking a direction under reg 7 or reg 9.
• The application should:
  • Demonstrate the relevance of the address to the offence charged (regs 7(1)(a); 9(1)(a)).
  • Address safety and privacy issues: show that disclosure is not likely to present a reasonably ascertainable risk to welfare/physical safety, or alternatively show why the interests of justice outweigh any such risk (regs 7(1)(b)(i)-(ii); 9(1)(b)(i)-(ii)). The application must expressly address the factors the court must consider under regs 7(2) and 9(2), namely the witness’s right to privacy and the accused’s right to prepare their defence.
  • Propose appropriate protective conditions if disclosure is granted, because the court may impose conditions on disclosure (regs 7(3); 9(3)).
• Be ready to justify why the applicant needs the disclosed address and what use it will have in preparing for trial; the Regulations make explicit that the court must balance privacy and preparation rights.

Certificates and affidavits (regs 10-14 and Schedule Forms)

• Use the prescribed forms exactly where the Regulations require them:
  • Form 1 for certificates under s 128 or 128A (regulation 10 and Schedule Form 1). Ensure the court authenticates the attached transcript or record as required by the form.
  • Form 2 for certificates of convictions, acquittals and other judicial proceedings under s 178 (regulation 12 and Schedule Form 2). Ensure the certificate is signed by an authorised person listed in the form (judge, registrar, prothonotary or proper officer) and that particulars are properly set out.
  • Form 3 or Form 4 for fingerprint affidavits under ss 179 and 180 (regulations 13-14 and Schedule Forms 3-4). The affidavit must include the sequence of statements in paragraphs 1-7 and annex certified copies of convictions as indicated.
• Check authentication and annexure requirements carefully. For example, Form 1 requires the transcript or record of evidence to be attached and “duly authenticated by the court or its proper officer” (Schedule Form 1).

Documentary practice and recordkeeping

• Ensure annexures are clearly labelled (A, B, C etc as Schedule Forms 3-4 suggest), and store copies in a manner consistent with court record standards. Maintain a witness address search log and record steps taken to discover addresses to support any later assertion that addresses were not known “so far as known” to the notifying party (regs 6(1)(c)(iii); 8(1)(b)(iii); 8(2)(b)(iii)).

Timing and service

• While the Regulations detail content, they do not specify timing or service periods. Practitioners must comply with any timing and service obligations imposed by the Evidence Act or court rules when serving notices and applications. However, because the Regulations prescribe the content, do not delay on content drafting: produce the required particulars and annexures at the time the Act or the court rules require the notice.

Protective orders and negotiations

• When preparing to request address disclosure in a criminal case, anticipate negotiating protective conditions: redaction, limited disclosure to counsel only, in‑camera inspection, or restricted use. The court has explicit power to impose conditions (regs 7(3) and 9(3)).

Review and updates

• The Endnotes state the Regulations will sunset on 26 November 2029 (Endnotes 1). Practitioners should monitor for any amendments or remaking of the Regulations before that date to ensure ongoing compliance with updated forms or content requirements.

Practical checklist (actionable)

• For a notice of previous representation: draft full substance; include other known representations; list dates, times, places, circumstances; name persons by and to whom statements were made; attach copy of any written representation and identify it; in civil matters include known addresses.
• For tendency/coincidence notices: set out substance of evidence; provide particulars of each event; list perceivers and attach addresses in civil matters where known.
• For criminal applications for addresses: prepare evidence of relevance; address safety/ privacy balancing; propose protective conditions; file affidavit evidence supporting the application.
• For certificates and affidavits: use the exact Schedule Form; obtain the correct signatory/authorisation; attach authenticated transcripts or certified copies as required.

Following these steps will align practice with the precise, prescribed content requirements in the Evidence Regulations 2019 and reduce the risk of procedural objections or the need for corrective amendments.