A deliberate police cover-up of unlawful conduct that triggered s 138 of the Evidence Act 2011 (ACT) is a relevant consideration in the s 138 balancing exercise, as it heightens the need to deter future contraventions and affects the weight to be given to the underlying contravention. Evidence that would otherwise be admitted despite a comparatively minor contravention may be excluded where police have attempted to conceal the breach. The correctness standard of appellate review applies to s 138 decisions in the ACT, though this remains a live issue. The question whether s 138 is properly characterised as conferring a discretion or demanding a unique outcome was left open.
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