Right to obtain and adduce evidence and confront witnesses

8.84     A person’s right to defend themself against a criminal charge includes the right to cross-examine the prosecution’s witnesses and to obtain and adduce other evidence in support of their defence. Disclosure of evidence also serves the proper administration of justice. The High Court has spoken of ‘the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case’.^[105]

8.85     At common law, the prosecution has a duty to disclose all relevant evidence in its possession to an accused.^[106] This is said to be an incident of an accused’s right to a fair trial^[107] and full disclosure has been called a ‘golden rule’.^[108] An accused also has a right to adduce other evidence in support of their defence.

8.86     Confrontation and the opportunity for cross-examination has also been said to be of ‘central significance to the common law adversarial system of trial’.^[109] The right to confront an adverse witness is ‘basic to any civilised notion of a fair trial’.^[110] In R v Davis, Lord Bingham said:

It is a long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence.^[111]

8.87     This principle, Lord Bingham said, originated in ancient Rome and was later recognised by such authorities as Sir Matthew Hale, Blackstone and Bentham.

The latter regarded the cross-examination of adverse witnesses as ‘the indefeasible right of each party, in all sorts of causes’ and criticised inquisitorial procedures practised on the continent of Europe, where evidence was received under a ‘veil of secrecy’ and the door was left ‘wide open to mendacity, falsehood, and partiality’.^[112]

8.88     These rights are also recognised in the United States Constitution. The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right ‘to be confronted with the witnesses against him’ and ‘to have compulsory process for obtaining witnesses in his favor’.

Limitations

8.89     A number of laws may limit the right to confront witnesses, test evidence and adduce evidence, including laws that:

• provide exceptions to the hearsay rule;

• protect vulnerable witnesses, such as children;

• protect privileged information, such as communications between client and lawyer and between a person and religious confessor;

• allow matters to be proved by provision of an evidential certificate; and

• permit the use of redacted evidence in court, for national security reasons.

Hearsay evidence

8.90     Exceptions to hearsay allow evidence to be adduced that cannot be the subject of cross-examination, and therefore have some potential, in principle, to affect the fairness of a trial.^[113]

8.91     The importance of being able to cross-examine adverse witnesses is one of the rationales for the rule against hearsay evidence.^[114] As noted above, confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial.^[115] Terese Henning and Professor Jill Hunter have written about the ‘massive challenge in identifying an apparently elusive formula to satisfy the fair trial right to confront one’s accusers in the face of key witnesses who have died, fled or refused to testify’.^[116]

8.92     However, many exceptions to the hearsay rule have been recognised both at common law and statute. The exceptions in the Uniform Evidence Acts are set out in ss 60–75 and have been said to be ‘a significant departure from the common law’.^[117] Australia has ‘followed the common law trend of shifting the traditional exclusionary rule in a markedly pro-admissibility direction’.^[118]

The Uniform Evidence Acts allow more out-of-court statements to be admitted and effectively abolishes the distinction between admitting statements for their truth or simply to prove that they were made. Also, implied, that is, unintended, assertions are not excluded, in contrast to the situation at common law where … the situation remains unclear.^[119]

8.93     If the Uniform Evidence Acts allow for more hearsay evidence to be admitted, this could, in principle, affect the fairness of a trial. But it is not suggested that they do in fact cause unfairness and no such suggestion was made in submissions.^[120]

8.94     Gans and Palmer write that the past exceptions to hearsay at common law were developed in a haphazard way and were unsatisfactory in principle and policy and difficult to apply.^[121] The legislation ‘comprehensively rationalises and liberalises’ the law.^[122]

8.95     It is not only the prosecution that may wish to adduce hearsay evidence. Given a defendant may wish to do so in aid of their defence, some exceptions to the hearsay rule may be necessary to give a defendant a fair trial.

Vulnerable witnesses

8.96     The vulnerable witness provisions under pt IAD of the Crimes Act are intended to protect child witnesses and victims of sexual assault. For example, there are restrictions on the cross-examination of vulnerable persons by unrepresented defendants.^[123]

8.97     Such laws limit traditional rights of cross-examination, but were not criticised in submissions to this Inquiry. In fact, there have been calls for such laws to be extended. Women’s Legal Services Australia has called for similar protections to be included in the Family Law Act, to

protect victims of family and domestic violence in family law from being subject to cross-examination by the perpetrator who is self-representing and to provide assistance with the victim’s cross-examination of the perpetrator (if the victim is also self-representing).^[124]

8.98     Laws to protect vulnerable witnesses recognise the importance of treating all participants in criminal proceedings fairly, rather than only the accused. In the past, Professors Paul Roberts and Jill Hunter have written, complainants and witnesses have ‘too often been treated in deplorable ways that betray the ideals of criminal adjudication’. Consequently:

Major procedural reforms have been implemented in many common law jurisdictions over the last several decades designed to assist complainants and witnesses to give their best evidence in a humane procedure which treats them with appropriate concern and respect.^[125]

8.99     Although these may be seen as laws that limit traditional fair trial rights, Roberts and Hunter stress that rights for victims and witnesses need not be ‘secured at the expense of traditional procedural safeguards, as though justice were a kind of commodity that must be taken from some (‘criminals’) so that others (‘victims’) can have more’.^[126] This is said to be a common misconception. Victims ‘do not truly get justice when offenders are convicted unfairly, still less if flawed procedures lead to the conviction of the innocent’.^[127]

Evidentiary certificates

8.100  The use of evidentiary certificates has the potential to affect the fairness of a trial. An evidentiary certificate allows third parties to provide the court with evidence—without appearing in court and therefore without being challenged about that evidence. The Guide to Framing Commonwealth Offences states that evidentiary certificates should be used rarely:

Evidentiary certificate provisions are generally only suitable where they relate to formal or technical matters that are not likely to be in dispute but that would be difficult to prove under the normal evidential rules, and should be subject to safeguards.^[128]

8.101  Section 34AA of the Australian Security Intelligence Organisation Act 1979 (Cth) enables evidentiary certificates to be issued, setting out facts in relation to certain acts done by ASIO. The Law Council of Australia (the Law Council) submitted that this may unjustifiably limit the right to a fair trial.

This principle requires that mechanisms designed to prevent disclosure of certain evidence must be considered exceptional, and limited only to those circumstances that can be shown to be necessary. The right to a fair trial may not have been appropriately balanced against the public interest in non-disclosure.^[129]

8.102  However, the certificates in s 34AA are only ‘prima facie evidence of the matters stated in the certificate’.^[130] More potentially problematic—though not necessarily unjustified—are provisions that provide that certain certificates are to be taken as conclusive evidence of the facts stated in the certificate.^[131] There are a number of such provisions in the Commonwealth statute book. Concerning such certificates, the Guide to Framing Commonwealth Offences states:

In many cases it will be beyond the power of the Federal Parliament to enact provisions that specify that the certificate is conclusive proof of the matters stated in it. Requiring courts to exclude evidence to the contrary in this way can destroy any reasonable chance to place the complete facts before the court. However, conclusive certificates may be appropriate in limited circumstances where they cover technical matters that are sufficiently removed from the main facts at issue. An example of a provision permitting the use of conclusive certificates is subsection 18(2) of the Telecommunications (Interception and Access) Act 1979. These certificates only cover the technical steps taken to enable the transfer of telecommunications data to law enforcement agencies.^[132]

Public interest immunity and national security information

8.103  The common law and Commonwealth statutes both recognise some limits on disclosure—for example, when disclosure would not be in the public interest, perhaps because it might threaten national security, and when disclosure would involve breaking a protected confidence, such as that between client and lawyer. Such limits on these principles are discussed in the following section.

8.104  Statutes that provide that a court may order that evidence not be admitted or disclosed in a criminal trial on public interest grounds may limit a person’s right to a fair trial. Although they appear to be justified, two such provisions are s 130 of the Uniform Evidence Acts and s 31 of the NSI Act.

8.105  A public interest immunity to protect certain information was recognised in the common law,^[133] and is provided for in s 130 of the Uniform Evidence Acts, which provides in part:

If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.^[134]

8.106  In making such a direction in criminal proceedings, the Acts state, a court may consider, among other things, ‘whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor’.^[135] If the information or document is needed to support the defence, this will strongly favour disclosure.^[136]

8.107  A related provision is s 31 of the NSI Act, which provides that in a criminal trial a court may make orders to prevent, or place conditions on, the disclosure of national security information.^[137] The court must consider not only any risk to national security, but ‘whether any such order would have a substantial adverse effect on the defendant’s right to receive a fair hearing, including in particular on the conduct of his or her defence’.^[138]

8.108  This provision of the NSI Act has attracted some criticism, particularly in relation to s 31(8),^[139] which provides that in deciding whether to make an order to protect national security information, a court ‘must give greatest weight’ to the question of national security.^[140] However, in R v Lodhi, Whealy J said that this ‘does no more than to give the Court guidance as to the comparative weight it is to give one factor when considering it alongside a number of others’. His Honour also said:

The legislation does not intrude upon the customary vigilance of the trial judge in a criminal trial. One of the court’s tasks is to ensure that the accused is not dealt with unfairly. This has extended traditionally into the area of public interest immunity claims. I see no reason why the same degree of vigilance, perhaps even at a higher level, would not apply to the Court’s scrutiny of the Attorney’s certificate in a s 31 hearing.^[141]

8.109  The Gilbert and Tobin Centre of Public Law suggested the provision’s impact on procedural fairness was nevertheless neither justified nor appropriate:

The court’s decision-making process should be rebalanced to give equal weight to procedural fairness and national security considerations, and it should require that information be excluded from the proceedings altogether if admitting it in summary or redacted form would undermine the defendant’s right to a fair trial.^[142]

8.110  The Councils for Civil Liberties also criticised the provision, preferring the balancing test in the Uniform Evidence Acts s 130.^[143]

8.111  Although not greatly concerned by its impact,^[144] the Independent National Security Legislation Monitor (INSLM) suggested s 31(8) be repealed.^[145] While it has ‘survived constitutional challenge, if its tilting or placing a thumb on the scales produces no perceptible benefit in the public interest, it would be better if it were omitted altogether’.^[146]

8.112  However, even without this amendment, the NSI Act does not, in the INSLM’s view, undermine a person’s right to a fair trial. In making an order under s 31, the NSI Act provides that a court must consider ‘whether any such order would have a substantial adverse effect on the defendant’s right to receive a fair hearing, including in particular on the conduct of his or her defence’.^[147] In the opinion of the INSLM, this suffices to protect against any potential unfairness.^[148]

8.113  More generally, the INSLM said that the NSI Act ‘represents a serious and valuable reform in granting to the court a power to modify disclosure so as to protect national security information while vindicating open and fair, or at least fair, justice’.^[149]

Secret evidence

8.114  Withholding secret evidence from one party to a criminal or civil procedure—particularly from a defendant in a criminal trial—is a more serious matter. Here, the court is asked to rely on evidence that the other party has no opportunity to see or challenge. There is a strong common law tradition against the use of secret evidence. In Pompano, French CJ said:

At the heart of the common law tradition is ‘a method of administering justice’. That method requires judges who are independent of government to preside over courts held in public in which each party has a full opportunity to present its own case and to meet the case against it. Antithetical to that tradition is the idea of a court, closed to the public, in which only one party, a government party, is present, and in which the judge is required by law to hear evidence and argument which neither the other party nor its legal representatives is allowed to hear.^[150]

8.115  The INSLM has said that ‘an accused simply should not be at peril of conviction of imprisonment (perhaps for life) if any material part of the case against him or her has not been fully exposed to accused and counsel and solicitors’.^[151]

8.116  Article 14 of the ICCPR also provides that defendants must have the opportunity to examine witnesses against them.

8.117  The ALRC is not aware of any Commonwealth provisions that allow for so-called secret evidence in criminal trials. Although there have been criticisms of the NSI Act in relation to this, the INSLM has stated that the Act ‘is not a legislative system to permit and regulate the use of secret evidence in a criminal trial—ie evidence adverse to an accused, that the accused is not allowed to know’.^[152]

8.118  The use of secret evidence in tribunals, particularly in immigration cases, is discussed in the ALRC’s 2004 report, Keeping Secrets.^[153]

Privileges

8.119  Statutory privileges have the potential to prevent an accused person from obtaining or adducing evidence of their innocence, and may have some potential to deny a person a fair trial.^[154] A privilege is essentially a right to resist disclosing information that would otherwise be required to be disclosed.^[155]

Privileged communications may be highly probative and trustworthy, but they are excluded because their disclosure is inimical to a fundamental principle or relationship that society deems worthy of preserving and fostering even at the expense of truth ascertainment in litigation. There is a constant tension between the competing values which various privileges promote, and the need for all relevant evidence to be adduced in litigation.^[156]

8.120  The recognition of certain privileges suggests that ‘truth may sometimes cost too much’.^[157] Unlike other rules of evidence, privileges are ‘not aimed at ascertaining truth, but rather at upholding other interests’.^[158]

8.121  Many statutory privileges provide for exceptions, usually with reference to the public interest, which may allow a court to permit a defendant in criminal proceedings to adduce what would otherwise be privileged evidence. Such exceptions exist to the privileges for journalists’ sources, self-incrimination, public interest immunity and settlement negotiations.^[159] However, these exceptions are arguably more limited or do not exist for client legal privilege and the privilege for religious confessions.^[160] Gans submitted that this needs careful review.^[161]

8.122  Section 123 of the Uniform Evidence Acts appears to provide for an exception to client legal privilege for defendants seeking to adduce evidence in criminal proceedings.^[162] However, the provision was given a confined interpretation in DPP (Cth) v Galloway.^[163] The Victorian Court of Appeal ruled that s 123 applied only to ‘the adducing by an accused of evidence already in the accused’s possession or knowledge’.^[164] The section therefore simply preserved a more limited exception recognised by the common law.^[165] The High Court in Carter v Northmore Hale Davey & Leake^[166] and the House of Lords in R v Derby Magistrates’ Court^[167]had bothrejected an exception to the privilege in favour of a defendant seeking to adduce evidence in their defence.^[168]

8.123  Nevertheless, that the privilege may sometimes conflict with fair trial principles has been recognised. In Grant v Downs, the existence of the privilege was said to reflect that one public interest is paramount over ‘a more general public interest’ that ‘requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available’.^[169] In Carter v Northmore Hale Davey & Leake, Toohey J noted that ‘it may seem somewhat paradoxical that “the perfect administration of justice” should accord priority to confidentiality of disclosures over the interests of a fair trial, particularly where an accused is in jeopardy in a criminal trial for a serious offence’.^[170]

8.124  Some have criticised the priority given to the privilege. Professor Colin Tapper, co-author of the classic text, Cross and Tapper on Evidence, has written that in Derby Magistrates the House of Lords ‘chose to exult the doctrine of legal professional privilege into an absolute right to which the need of the accused for access to evidence to promote his defence was subordinate’.^[171] Professor Tapper argued that ‘this betrays conceptual confusion, and can be justified neither in principle nor on authority’.^[172] Others have called the House of Lords decision a ‘significant—and somewhat surprising—derogation from traditional priorities’.^[173] Jonathan Auburn was also critical of the position taken by the courts in Australia and England, and stressed the strong interest in giving a criminal accused access to all exculpatory evidence.^[174]

8.125  An exception to the privilege has been recognised in Canada^[175] and New Zealand. Section 67(2) of the Evidence Act 2006 (NZ) makes an exception for communications or information where ‘the Judge is of the opinion that evidence of the communication or information is necessary to enable the defendant in a criminal proceeding to present an effective defence’.

8.126  Client legal privilege is an important right which should only be limited when strictly necessary. However, given the importance of allowing a defendant to bring evidence in support of their defence, the ALRC considers that s 123 of the Uniform Evidence Acts should be reviewed and further consideration should be given to enacting a clear exception to the privilege for defendants seeking to adduce evidence.