The use of the word 'may' in s 97A(4) of the Evidence Act 2011 (ACT) does not clearly determine that the entire multi-step exercise under s 97A is discretionary, and even if it were, errors of principle, fact or law remain reviewable. The question of the applicable standard of review (House v The King versus correctness) was left open for determination on the appeal. The court identified potential errors in the primary judge's approach to the exceptional circumstances threshold under s 97A(5), including the failure to separately consider whether exceptional circumstances existed for each factor falling within paragraphs (a)-(g).
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