Right to confront witnesses and test evidence

10.81   The High Court has said that ‘confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial’.[93] The right to confront an adverse witness has been said to be ‘basic to any civilised notion of a fair trial’.[94] 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.[95]

10.82   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’.[96]

10.83   The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.

Statutory limitations

10.84   A number of laws may limit the right to confront witnesses and test 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

10.85   The importance of being able to cross-examine adverse witnesses is one of the rationales for the rule against hearsay evidence.[97] The hearsay rule, as set out in the Uniform Evidence Acts, is as follows:

Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.[98]

10.86   The High Court has said that one ‘very important reason why the common law set its face against hearsay evidence was because otherwise the party against whom the evidence was led could not cross-examine the maker of the statement’.[99]

Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial.[100]

10.87   However, 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’.[101]

10.88   Exceptions to the hearsay rule have been recognised both at common law and in statutes. However, hearsay under the Uniform Evidence Acts extends the common law exceptions and has been said to be ‘a significant departure from the common law’.[102] The exceptions are set out in ss 60–75 of the Uniform Evidence Acts.

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.[103]

10.89   Henning and Hunter write that, in recent years, ‘many common law systems have introduced sweeping legislative reforms’ in this area, and ‘Australia’s legislature and courts have followed the common law trend of shifting the traditional exclusionary rule in a markedly pro-admissibility direction’.[104]

Vulnerable witnesses

10.90   The vulnerable witness provisions under the Crimes Act pt IAD 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 in pt IAD div 3.[105]

10.91   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 provided for 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).[106]

10.92   Such laws are part of the trend towards considering the importance of treating fairly all participants in criminal proceedings, rather than the traditional focus on fairness only for the accused.[107] 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’.

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.[108]

10.93   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’.[109] 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’.[110]

Privileges

10.94   Statutory privileges have the potential to prevent an accused person from obtaining or adducing evidence of their innocence, and may therefore deny a person a fair trial.[111] A privilege is essentially a right to resist disclosing information that would otherwise be required to be disclosed.[112]

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.[113]

10.95   The recognition of certain privileges suggests that ‘truth may sometimes cost too much’.[114] Unlike other rules of evidence, privileges are ‘not aimed at ascertaining truth, but rather at upholding other interests’.[115]

10.96   Many statutory privileges provide for exceptions, usually with reference to the public interest, which may allow a court to permit a defendant to adduce otherwise privileged evidence of his or her innocence. Such exceptions exist for the privileges for journalists’ sources, self-incrimination, public interest immunity and settlement negotiations.[116] However, they are arguably more limited or do not exist for client legal privilege and the privilege for religious confessions.[117] Professor Gans submitted that this needs careful review.[118]

10.97   Section 123 of the Evidence Act 1995 (Cth) does provide for an exception for defendants seeking to adduce evidence in criminal proceedings, but Gans was critical of a confined interpretation given to the exception in a 2014 decision of the Victorian Court of Appeal.[119]

Evidentiary certificates

10.98   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.[120]

10.99   The Australian Security Intelligence Organisation Act 1979 (Cth) s 34AA enables evidentiary certificates to be issued, setting out facts in relation to certain acts done by ASIO. The Law Council of Australia 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.[121]

10.100         However, the certificates in s 34AA are only ‘prima facie evidence of the matters stated in the certificate’.[122] 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. 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.[123]

Redacted evidence

10.101         There is a potential for redacted evidence to affect the fairness of a trial. Redacted evidence is documentary evidence that has been altered in some way, usually by being partially deleted to protect certain information from disclosure. As the INSLM explained, ‘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’.[124]

10.102         The NSI Act places certain limits on the disclosure of national security information, but also provides that a copy of a document that contained such information may be disclosed in federal criminal proceedings, if the relevant national security information has been deleted.[125] In making such an order, a court must consider a number of factors, but must give ‘greatest weight’ to questions of national security.[126] The Law Council submitted that this ‘may unduly restrict the court’s discretion to determine how and when certain information may be disclosed in federal criminal proceedings’ and have an impact on ‘a defendant’s opportunity to examine the prosecution’s case and may not be a proportionate response to the risk identified, in view of the potential prejudice’.[127]

10.103         In making such an order, a court must also 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’.[128] In the opinion of the INSLM, this suffices to protect against any potential unfairness.[129]

Secret evidence

10.104         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.[130]

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

10.106         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’.[131]

10.107         The use of secret evidence in tribunals, particularly in immigration cases, is discussed in the ALRC’s report, Keeping Secrets.[132]

[93]         Lee v The Queen (1998) 195 CLR 594, [32].

[94]         R v Hughes [1986] 2 NZLR 129, 149 (Richardson J).

[95]         R v Davis [2008] 1 AC 1128, [5].

[96]         Ibid.

[97]         ‘Legal historians are divided between those who ascribe the development of the rule predominantly to distrust of the capacity of the jury to evaluate it, and those who ascribe it predominantly to the unfairness of depriving a party of the opportunity to cross-examine the witness’: JD Heydon, Cross on Evidence (Lexis Nexis Butterworths, 9th ed, 2013) [31015].

[98]         Evidence Act 1995 (Cth) s 59(1). Another formulation is set out in Cross on Evidence: ‘an assertion other than one made by a witness while testifying in the proceedings is inadmissible as evidence of any fact asserted’: Heydon, above n 97, [31010].

[99]         Lee v The Queen (1998) 195 CLR 594, [32].

[100]       Ibid.

[101]       Terese Henning and Jill Hunter, ‘Finessing the Fair Trial for Complainants and the Accused: Mansions of Justice or Castles in the Air’ in Paul Roberts and Jill Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Bloomsbury Publishing, 2012) 347.

[102]       Westlaw AU, The Laws of Australia (at 20 July 2015) 16 Evidence, ‘16.4 Testimony’ [16.4.1950].

[103]       Ibid.

[104]       Henning and Hunter, above n 101, 347.

[105]       Concerning the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013 (Cth), the Human Rights Committee said: ‘The committee appreciates that this is intended to protect vulnerable witnesses and does not limit the ability of the defendant’s legal representative from testing evidence. However, the committee is concerned that if a person is not legally represented this provision may limit the defendant’s ability to effectively examine the witnesses against them’: Parliamentary Joint Committee on Human Rights, Parliament of Australia, Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Eighth Report of 2013 (June 2013) 5.

[106]       Women’s Legal Services Australia WLSA, Submission 5. The Productivity Commission and the ALRC and NSW Law Reform Commission have made recommendations about the cross-examination of complainants in sexual assault proceedings in previous inquiries: Productivity Commission, Access to Justice Arrangements (2014) rec 24.2; Australian Law Reform Commission and NSW Law Reform Commission, Family Violence: A National Legal Response, ALRC Report No 114, NSWLRC Report 128 (October 2010) Recs 18–3, 27–1, 27–2, 27–3. See further, Phoebe Bowden, Terese Henning and David Plater, ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539.

[107]       This is discussed more generally later in the chapter.

[108]       Paul Roberts and Jill Hunter, ‘Introduction—The Human Rights  Revolution in Criminal Evidence  and Procedure’ in Paul Roberts and Jill Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Bloomsbury Publishing, 2012) 20.

[109]       Ibid.

[110]       Ibid.

[111]       J Gans, Submission 2.

[112]       Australian Law Reform Commission; New South Wales Law Reform Commission; Victorian Law Reform Commission, Uniform Evidence Law, ALRC Report No 102 (2006) [14.1]. See also Jeremy Gans and Andrew Palmer, Australian Principles of Evidence (Cavendish Publishing Ltd, 2004) 91.

[113]       Jill B Hunter, Camille Cameron and Terese Henning, Evidence and Criminal Process (LexisNexis Butterworths, 2005) 276 [8.1]. In McGuinness v Attorney-General (Vic) Rich J said: ‘Privilege from disclosure in courts of justice is exceptional and depends upon only the strongest considerations of public policy. The paramount principle of public policy is that the truth should be always accessible to the established courts of the country. It was found necessary to make exceptions in favour of state secrets, confidences between counsel and client, solicitor and client, doctor and patient, and priest and penitent, cases presenting the strongest possible reasons for silencing testimony’: McGuinness v Attorney-General (Vic) (1940) 63 CLR 73, 87.

[114]       R v Young (1999) 46 NSWLR 681, 696–7 (Spigelman CJ).

[115]       J Gans, Submission 2.

[116]       Evidence Act 1995 (Cth) ss 126H(2), 128(4), 129(5), 130(5), 131(2). See J Gans, Submission 2.

[117]       Evidence Act 1995 (Cth) ss 118–120, 127.

[118]       J Gans, Submission 2.

[119]       DPP (Cth) v Galloway (a pseudonym) & Ors [2014] VSCA 272 (30 October 2014).

[120]       Attorney-General’s Department, ‘A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers’ (2011) 54.

[121]       Law Council of Australia, Submission 75. ‘These provisions relate to the use of special powers by ASIO, such as search warrants, computer search warrants, and listening and tracking device warrants’: Ibid.

[122]       Australian Security Intelligence Organisation Act 1979 (Cth) s 34AA(4).

[123]       Attorney-General’s Department, above n 120, 55.

[124]       Independent National Security Legislation Monitor, Australian Government, Annual Report (2013) 142.

[125]       See National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) s 31(2).

[126]       Ibid s 31(8).

[127]       Law Council of Australia, Submission 75.

[128]       National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) s 31(7)(b).

[129]       Independent National Security Legislation Monitor, Australian Government, Annual Report (2013) 143. This matter is discussed extensively in this report.

[130]       Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38, [1] (French CJ) (emphasis added).

[131]       Independent National Security Legislation Monitor, Australian Government, Annual Report (2013) 140.

[132]       Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, Final Report No 98 (2004) Ch 10.