Bills Digest no. 57 2005–06
Law and Justice Legislation Amendment (Video Link
Evidence and Other Measures) Bill
2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Law and
Justice Legislation Amendment (Video Link Evidence and Other
Measures) Bill 2005
Date
Introduced: 14
September 2005
House: Representatives
Portfolio: Attorney-General
Commencement:
The day after the Bill
receives Royal Assent.
This Bill amends the Crimes
Act 1914 (Cth) ( the Crimes Act ) to create new video link
evidence provisions that apply to proceedings for terrorism and
other related offences and proceeds of crime proceedings relating
to those offences. The Bill would allow evidence from overseas
witnesses that are unable to travel to Australia to be put before
the court using video link technology. An Australian observer would
be present as a observer. These provisions put the onus on the
defendant to show the evidence should not be allowed because it
would have a substantial adverse effect on his or her right to a
fair hearing. However, the prosecution only needs to satisfy the
court of the broader test that allowing the evidence is in the
interests of justice. If the court refuses to allow video evidence,
the decision can be appealed.
The Bill amends the Foreign
Evidence Act 1994 to reflect in corresponding terms the
admissibility of foreign evidence, such as video tapes and
transcripts for terrorism offences, where video-linking itself is
not possible, again changing the onus on the defendant to prove a
substantive adverse effect on their right to a fair hearing.
The Bill also amends the Crimes Act in the following manner:
-
to confer on Federal Court judges and Federal Magistrates the
non-judicial functions and powers
-
to facilitate the sharing of DNA profiles between Australian law
enforcement agencies over a national DNA database system, and
-
to expand the definition of tape recording to enable new
technologies, such as digital audio recording technology, to be
used by federal law enforcement agencies to record interviews.
The Bill amends the
Surveillance Devices Act 2004 so that, when a
surveillance device has been installed under an authorisation, a
warrant can be obtained to allow that surveillance device to be
retrieved.
Amendments are made to the Financial
Transaction Reports Act 1988 ( FTRA ) to rectify an
oversight in the
Proceeds of Crime (Consequential Amendments and Transitional
Provisions) Act 2002.
Finally, the Proceeds
of Crime Act 2002 ( POCA 2002 ) is amended to ensure that
third parties, such as the Administrative Appeals Tribunal, which
carry out examinations for the Commonwealth can be paid out of the
confiscated assets account, and confirms the validity of
examinations made by members of the Administrative Appeals Tribunal
under regulation.
On 4 October 2005, the Senate referred the above Bill to the
Senate Legal and Constitutional Legislation Committee for
inquiry and report by 1 November
2005.
When introducing the Bill, the Hon Philip Ruddock MP, (Attorney
General) stated that:
It is becoming clear that, to successfully
prosecute a terrorist, it will often be necessary to rely on
evidence from witnesses who are living overseas. In some cases a
witness may be unable to travel to Australia to give evidence. For
example, the witness may be incarcerated overseas.
The new video link evidence provisions strike a
balance between facilitating the admission of video link evidence
while ensuring that fundamental safeguards are
maintained.(1)
The presumption in criminal trials is the defendant is innocent
until proven guilty. A corollary of this principle is that the
defendant in a criminal trial is entitled to confront witnesses
giving evidence against him of her. The logic is that the
prosecution may present witnesses who may have reason to fabricate
or exaggerate evidence against the accused and they need to be
subjected to cross examination from defence counsel in person to
elicit the whole truth. The High Court has stated that
confrontation and the opportunity for cross-examination is of
central significance to the common law adversarial system of trial
.(2)
An exception has been created to this rule in many Australian
jurisdictions where the witness has a particular vulnerability
which may mean that facing the defendant would inhibit their giving
of evidence, for example, children in sexual assault trials, rape
victims, or victims in war crimes trials. An example of an
exception based on the protection of a vulnerable witness is the
Crimes (Child Sex Tourism) Amendment Act
1994 (Cth). The legislation permits the use of video link
evidence if the witness is outside of Australia and the attendance
of the witness would cause unreasonable expense, inconvenience,
distress or harm to the witness, or cause the witness to become so
intimidated or distressed that their reliability as a witness would
be significantly reduced (section 50EA Crimes Act).
As well as section 50E, video link evidence can currently be
made available from overseas at the Federal level under subsection
12(3) of the
Mutual Assistance in Criminal Matters Act 1987 (Cth) and
under Part 3 of the
Foreign Evidence Act 1994 (Cth).(3)
Australian State jurisdictions generally provide for the accused
to give video link evidence in order to reduce movement of the
prisoner to court, or for a witness to give video evidence at the
court's discretion if it would be in the interests of justice . The
various Evidence Acts provide for this, as well as the legislation
setting up each court and the orders or practice directions made
under them.(4)
Other common law countries have similar
provisions.(5) Parts 4 and 5 of the Evidence and
Procedure (New Zealand) Act 1994 (Cth) allow
Australian and New Zealand courts to take video evidence from
either country at their discretion.
Terrorism trials pose specific problems for both the defence and
the prosecution, and the court as a whole, which have led
Governments to legislate changes to ordinary criminal procedures.
As a recent report on the United States ( US ) experience of terror
trials notes:
The chief objection to prosecuting accused
terrorists in federal court has been that the defendant s rights in
that forum to confront the evidence against him, to obtain evidence
in his favour, and to be tried in a public proceeding jeopardize
secret information vital to counterterrorism efforts. The chief
objection to the new military commissions, in turn, has been that
secret and un-rebutted evidence will play a major part in the
process, unfairly depriving the defendant of the means to defend
himself and opening the door to error and executive abuse.
Both sides raise legitimate concerns. Protecting
classified information in a terrorism prosecution is a serious
challenge. Prosecution can hinge on evidence gathered through
sensitive intelligence mechanisms, such as classified informants,
signal intelligence, and delicate cooperation with the military and
intelligence services of other countries. Fifteen U.S. intelligence
agencies in the civilian and military establishments, besides the
FBI and state and local police, may be involved in building a
criminal case. Such agencies have good cause for keeping operations
and intelligence-gathering strategies secret. Complicating matters
further, the sheer scale of possible harm from a terrorist act
means that waiting for such acts to be completed, or even to
approach completion, is not an option. Prosecutors therefore must
work with less evidence than in a run-of-the-mill criminal
case.(6)
These tensions, and the first use of video evidence in a
terrorism trial, have already arisen in the Australian case of Mr
Fadheem Lodhi. Video evidence was tendered by the Commonwealth
Director of Public Prosecutions ( DPP ) in the committal hearings
which were held between December 2004 and February 2005. Mr Lodhi
has been arraigned in the NSW Supreme Court. His trial will take
place in February 2006. A summary of the video-link evidence
tendered in the committal hearings is provided to give context to
the Bill.(7) As some of the key provisions of the Bill
have retrospective operation, they may be in effect for this
trial.
Mr Lodhi, a 34-year-old architect from Punchbowl, faces nine
charges after allegedly plotting to bomb the National Electricity
Group and several Sydney defence sites. He was arrested in 2004 and
charged with;
-
two counts of making and collecting documents connected with
preparation for a terrorist act (section 101.5 of the Criminal
Code Act 1995 (Cth)) maximum penalty of 15 years
-
two counts of preparing for a terrorist act (section 101.6)
maximum penalty life imprisonment, and
-
five counts of making false statements under questioning by the
Australian Security Intelligence Organisation ( ASIO ) (section 34G
of the Australian Security Intelligence Organisation Act
1979 (Cth)) maximum penalty 5 years imprisonment.
The charges relate to Mr Lodhi s alleged involvement with
Lashkar-e-Toiba ( LET ) activities in both Pakistan and in Sydney.
The charges resulted from ASIO and Australian Federal Police ( AFP
) investigations into a French citizen, Willy
Brigitte.(8)
In this case, the Commonwealth tendered the evidence of four
overseas witnesses who all gave evidence at the committal hearing
over defence objection on video link in late 2004 and early
2005.
One witness was being held in Singapore without charge under
that country s National Security Legislation. The other three
witnesses are serving sentences in the United States and had
reportedly reached plea agreements with the US Government to give
evidence in various trials in the US, Australia and the
UK.(9)
The Singaporean witness Arif Naharudin purported to be able to
identify Faheem Lodhi as a participant in LET training camps in
Pakistan. Due to the operation of the
National Security Information (Criminal And Civil Proceedings)
Act 2004 ( National Security Information Act ), defence
counsel were not allowed to see certain parts of his evidence on
national security grounds, and the cross-examination was held in
secret.(10)
The defence argued in court that Naharudin s testimony may be
suspect:
PHILLIP BOULTEN: He's being held without charge.
We do not know what pressures have been put on him. We want to
know. If we're going to be restricted from asking questions about
it, it's getting to the point in this whole process where there's
barely any justice at all, let alone Australian justice!
(11)
It was reported that his evidence raised self-incrimination
issues as Naharudin said he had been granted immunity from
prosecution in Australia, but not in the US or Singapore.
Magistrate Michael Price advised Naharudin not to say anything that
could show him to be guilty in other countries.(12) The
prosecution later withdrew this witness.(13)
Reports of several other issues emerged during the
cross-examination of US witnesses. Yong Ki Kwon admitted lying when
questioned about his movements by the FBI in March 2003, and having
done a deal with the FBI to lessen his sentence in exchange for
information.(14) Ibrahim Al-Hamdi admitted that US
authorities no longer considered him a credible witness after being
impeached in a US trial.(15)
Phillip Boulten SC, in a recent article in Australian
Prospect, has made the following claim that the evidence of
the fourth Commonwealth witness may have been tainted by
torture:
A second American emerged badly from his
cross-examination a the committal hearing in February 2005 where it
was revealed that he had been arrested by Saudi Arabian police in
Riyad, held without warrant and without charge for approximately 4
weeks in solitary confinement in a cell with the lights on 24-hours
a day, interrogated regularly throughout the night by Saudi police
then handed over the FBI who, after stripping him naked and
photographing his genitals dressed him in prison greens, placed him
in irons and placed dark goggles over his face then transported him
from Riyad to Washington. He told Central Local Court in Sydney
that it was in this flight that he first confessed his involvement
in LET activities.(16)
There were also some technical
issues. In December 2004, the Commonwealth DPP requested and was
granted an adjournment of six months, saying the Australian
translator spoke a different dialect to Naharudin, and difficulties
with the video link were causing confusion.(17)
Existing section 4AAA of the Crimes Act deals with the rules
that apply if, under a law of the Commonwealth relating to criminal
matters, a function or power that is neither judicial nor
incidental to a judicial function or power, is conferred on
specified judicial officers. The rules currently apply to State or
Territory judges and magistrates.
Section 4AAA was inserted by the Crimes Amendment (Forensic
Procedures) Act 2000 (Cth) and affect Part 1A of the Principal
Act. The Government at the time said the amendment flowed from the
constitutional doctrine which requires federal judicial power to be
separated from legislative and executive power under Chapter III of
the Constitution. Under this doctrine, holders of Commonwealth
judicial power can only exercise non-judicial power in limited
circumstances. For example, non-judicial power which is incidental
to the exercise of judicial power may be conferred and exercised.
Further, non-judicial power may be exercised by the holder of
judicial office if it is conferred in a personal capacity and with
the consent of the federal judge. Functions cannot be conferred
which are incompatible with the exercise of federal judicial power.
The original section 4AAA was framed to reflect the High Court s
language in their decision of Grollo v Palmer
(1995) 184 CLR 348 which found that Federal Court judges could
validly issue telecommunications interception warrants.
In the case of Grollo v. Palmer, the High Court
discussed how incompatibility issues might prevent a judge from
exercising non-judicial functions even when that function was
conferred in a personal capacity (persona designata) and
by consent. The incompatibility condition stipulates that:
no function can be conferred that is incompatible
either with the judge s performance of his or her judicial
functions or with the proper discharge by the judiciary of its
responsibilities as an institution exercising judicial power
(18)
Incompatibility can arise in various ways. For instance, if the
performance of the non-judicial function prejudices a judge s
capacity to perform their judicial duties with integrity or if it
undermines public confidence in that capacity or in the integrity
of the judiciary as a whole, then the action will be
unconstitutional.(19)
As Fiona Wheeler has pointed out, in Grollo v.
Palmer:
Three features of service as an eligible Judge
suggested that it was liable to undermine public confidence in the
Federal Court. First, the circumstances associated with the issue
of a warrant could subsequently generate a matter coming before the
Federal Court for resolution. Thus, an individual judge might need
to disqualify himself or herself, a situation complicated by the
duty of confidentiality to which persons issuing interception
warrants were subject. Second, the issue of a warrant was an
intrusive aspect of the criminal investigative process. Third, the
manner in which the power was exercised was contrary to the
traditional judicial process, being discharged ex parte, in secret,
and without the giving of reasons.(20)
As Wheeler states, what saved the provisions under challenge in
that case were the views of Brennan CJ, Deane, Dawson & Toohey
JJ that the authorisation of interception warrants involved the
judges in a valuable social function the objective of which was
consistent with the traditional role of the courts. The joint
majority said:
it is precisely because of the intrusive and
clandestine nature of interception warrants and the necessity to
use them in today s continuing battle against serious crime that
some impartial authority, accustomed to the dispassionate
assessment of evidence and sensitive to the common law s protection
of privacy and property be authorised to control the official
interception of communications.(21)
In the later case of Wilson v. Minister for Aboriginal and
Torres Strait Islander Affairs, the court said the use of a
federal judge as a reporter under the Aboriginal and
Torres Strait Islander Heritage Protection Act
1984 offended the incompatibility principle because the
reporter was not independent of the Executive
Government.(22)
Items 1 to 3 add Judges of the Federal Court of
Australia and Federal Magistrates to the categories of judicial
officers.
Item 4 notes that the rule can be expressly
overridden in legislation with a contrary intention.
It is not clear why the Commonwealth is seeking to widen the
non-judicial functions categories to the Federal level at this
juncture. The example given in the Explanatory Memorandum
is the power of Judges of the Federal Court to issue an arrest
warrant under section 31 of the Australian
Crime Commission Act 2002.(23)
The proposed amendments may not withstand Constitutional
challenge depending on exactly what the judicial officer is
required to do. For example, doubt was cast over whether the
principle in Grollo v Palmer would extend to
Federal Magistrates acting as prescribing authorities during the
Parliamentary Joint Committee on ASIO, ASIS and DSD (PJCAAD)
Review of the Australian Security Intelligence Organisation
Legislation Amendment (Terrorism) Bill 2002.(24) A
prescribed authority is present while a person is questioned under
a Division III warrant.
Chapter Two of the
Report states at Paragraph 2.20:
Dr Greg Carne, however, commented that the
'obligations of the federal magistrate's PA [a Federal Magistrate
acting as a prescribed authority] exceed the principles set down by
the High Court in the Grollo v. Palmer case and 'are likely to
collapse on the basis of a constitutional challenge.' Similarly,
Professor Williams stated:
In the earlier case of Grollo v. Palmer, the High
Court decided that telephone tapping was not incompatible, that
could be a source of power given to judges. However, I think in
this instance, particularly given the criticism that has been
levelled at Grollo v. Palmer since it was handed down, there is a
strong possibility that this goes much further than that and,
indeed, would be seen as distinguishable from that circumstance. A
judge in this case would be giving a warrant that would amount to a
far higher degree of intrusion into private rights.
This issue may also arise in relation to the proposal agreed at
the Council of
Australian Governments Special Meeting in September 2005 to
allow the Australian Federal Police to place persons in
preventative detention. The Communiqu states at page 9 that the
issuing authority would be a Magistrate or Judge who agrees to
authorise the issue of warrants in their personal capacity.
Item 5 inserts new Part 1AE
into the Crimes Act.
Proposed section 15YU sets out the proceedings
for terrorism and other related offences to which the video link
evidence provisions in new Part 1AE of the Crimes Act will apply.
The offences are:
-
subsection 34G(5) of the Australian Security Intelligence
Organisation Act 1979 (offence to give false and misleading
answers when questioned by ASIO about terrorist matters)
-
section 49 of the Aviation Transport Security Act 2004
(weapons on board an aircraft)
-
section 21 of the Charter of United Nations Act 1945
(giving an asset to a proscribed person or entity)
-
Division 72 of the Criminal Code (international
terrorist activities using explosive or lethal devices)
-
Part 5.3 of the Criminal Code (terrorism offences)
-
Part 5.4 of the Criminal Code (harm against
Australians)
-
sections 24AA and 24AB of the Crimes Act 1914
(treachery and sabotage offences)
-
Division 1 of Part 2 of the Crimes (Aviation) Act 1991
(Hijacking and other acts of violence on board aircraft)
-
section 8 of the Crimes (Biological Weapons) Act 1976
(Restriction on development etc. of certain biological agents and
toxins and biological weapons)
-
the Crimes (Foreign Incursions and Recruitment) Act
1978
-
section 8 of the Crimes (Hostages) Act 1989, and
-
the Crimes (Internationally Protected Persons) Act
1976.
The Explanatory Memorandum states that subsection
34G(5) of the Australian Security Intelligence Organisation Act
1979 has been included because:
Whilst an offence against this section is not
directly related to a terrorism offence as such, evidence from
witnesses who are overseas may be required to prove that the person
made such false or misleading statements in the context of
investigating the terrorism offence. It is important that special
questioning powers for investigating terrorist offences can be
enforced.(25)
These offences would also include ancillary offences such as
attempts, incitement or conspiring to commit one of the offences
listed in proposed section 15YU (due to the operation of section
11.6 of the Criminal Code Act 1995) and accessories after
the fact (under section 6 of the Crimes Act).
Proposed paragraph 15YU(2)(b) provides that new
Part IAE will also apply to civil proceedings under the
Proceeds of Crime Act 2002 ( POCA ) relating to the
offences listed in subsection 15YU(1).
The Explanatory Memorandum gives the following example
of how the provision might work:
the Commonwealth Director of Public Prosecutions
may seek to take POCA proceedings to restrain or confiscate
property (for example, money in a bank account) which has been used
or was intended to be used as an instrument of a terrorism offence.
Paragraph 15YU(2)(b) also provides that the video link evidence
rules in proposed Part 1AE of the Crimes Act 1914 would apply to
the POCA proceedings to restrain and confiscate the money in the
bank account, whether or not criminal proceedings have been taken
in relation to the terrorism offence.
Proposed subsection 15YU(3) states that the new
rules in Part 1AE will apply prospectively to proceedings initiated
before the commencement of Part 1AE. Therefore, these
provisions would have a retrospective effect.
Proposed section 15YV sets out the
circumstances in which the court must direct or allow a
witness to give evidence by video link. There are five general
requirements both sides must satisfy:
-
either the prosecution or defendant must have made an
application under section 15YV for a direction or order that a
witness give evidence by video link
-
the prosecutor and defendant must have given the court
reasonable notice of their intention to make the application, so
the technical arrangements can be made, and to the other party
sufficient opportunity to consider the proposal
-
the witness must be available to give evidence by video
link
-
the facilities required by proposed section 15YY must be
available or reasonably capable of being made available, and
-
the witness cannot be a defendant in the proceeding.
If these requirements are fulfilled, the court then applies
one of two different tests depending on whether the prosecution or
the defence has applied for the video-evidence.
Proposed subsection 15YV(1)
provides that, where the prosecutor has applied for the direction
or order, the court must direct or allow the witness to give
evidence by video link unless the court is satisfied that giving
the direction or making the order would have a substantial
adverse effect on the right of the defendant in the proceeding to
receive a fair hearing.
The Explanatory Memorandum states that:
This ensures that, in a terrorism prosecution,
where evidence from a witness may be critical to the prosecution s
capacity to prove the guilt of the defendant beyond reasonable
doubt, the court will only be able to disallow video link evidence
where there is a compelling reason to do so. Under State and
Territory video link provisions the onus is generally on the party
seeking to adduce evidence by video link to convince the court that
it should allow the evidence. These new rules essentially put the
onus on the other party to provide a compelling reason why the
evidence should not be allowed.(26)
The phrase substantive adverse effect is defined in section 7 of
the National Security Information (Criminal and Civil
Proceedings) Act 2004 to mean an effect that is adverse and
not insubstantial, insignificant or trivial . It has yet to be
judicially considered.
The phrase was considered in detail by the Senate Legal and
Constitutional Committee in its
Report into the Provisions of the National Security Information
Legislation Amendment Bill 2005 dated 11 May 2005. The
Committee was concerned that when making a suppression order the
court is asked to give greatest weight to the issue of whether
there would be a risk of prejudice to national security over
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 (National Security
Information Act subsection 31(7)).
The phrase is also used in Section 40(1)(c) and (d) of the
Freedom of Information Act 1982. The Freedom
of Information Memorandum No. 98 prepared by the
Attorney-General s Department dated 31 December 2003 at paragraph
1.6.1.1 notes:
In the FOI context, the word substantial
has variously been interpreted to mean severe, of some gravity,
large or weighty or of considerable amount, real or of substance
and not insubstantial or nominal consequences . The
word substantial certainly requires loss or damage
that is more than trivial or minimal (Tillmanns Butcheries
Pty Ltd v Australasian Meat Employees Union & Ors ).
The adverse effect must be sufficiently
serious or significant to cause concern to a properly informed
reasonable person The AAT in Re Dyki and Commissioner of
Taxation, at 129 (D259), notes: (t)he onus of establishing a
'substantial adverse effect' is a heavy one. However, with
reference to Re Barkhordar and Australian Capital Territory
Schools Authority (D172), the AAT in Re Dyki at 130 states:
whilst a 'substantial adverse effect' may be a formidable
obstacle for the Commissioner to establish, it is certainly not
impossible.(27)
Proposed subsection 15YV(2) provides that where
the defendant applies for the direction or order, the court must
direct or allow the witness to give evidence by video link unless
the court is satisfied that it would be inconsistent with
the interests of justice for the evidence to be given by video
link.
The interests of justice test is commonly used by courts to
determine procedural issues and involves balancing the interests of
both parties and the wider integrity of the court system.
(28)
The Explanatory Memorandum also emphasises that:
Where an applicable State or Territory law also
allows evidence to be given by video link, it would be open to the
prosecution or defendant to instead make a video link application
under that State or Territory law, in which case, the rules in
proposed Part 1AE would not apply.(29) (See
proposed sections 15YZE and
15YZF)
Item 5 inserts new section
15YW which deals with observers. The court has discretion
to make the giving of video evidence conditional on an independent
observer being present at the site if it is concerned about issues
such as duress. It is not mandatory. Under subsection
(4), an observer can be an Australian diplomat or consular
officer, or any other person. However, the person must be specified
by the court in the direction or order under subsection
(1). The court is limited to who can be specified in the
order under the conditions of subsection (5), and
must be independent, competent, available and appropriate. The
court can change the specified person under subsection
(3). The observer can give the court a report on what they
observed in relation to the giving of evidence by the witness
(subsection 7).
The Attorney-General in his second reading speech stated
that:
This is a safeguard that will ensure that the
court is aware of everything that is occurring at the point where
the witness is giving the evidence.(30)
It is not clear what safeguards are present if a witness is
called under State or Territory laws.
Proposed section 15YX deals with adjournments.
Where the court gives a direction or makes an order or refuses to
give a direction or make an order under section 15YV, the
prosecutor or defendant may apply to the court to adjourn the
proceedings, to decide whether to appeal against the direction or
order, and if necessary, to appeal the direction or order. The
court must grant the adjournment.
The prosecution can also apply to the court for an adjournment
to allow time for the prosecution to decide whether to withdraw the
proceeding, and if the prosecution decides to do so, make the
withdrawal.
The Explanatory Memorandum states:
For example, if the prosecution makes an
application to have a witness give evidence by video link and the
judge refuses to give a direction or order under section 15YV
because the judge is of the view that it would have a substantial
adverse effect on the defendant s right to a fair hearing, the
adjournment will allow time for the prosecution to decide whether
they have sufficient evidence to proceed with the prosecution
without the video link evidence.(31)
Proposed section 15YY provides that video link
evidence can only be given if the place where the court is sitting
and the place where the evidence is to be given are each equipped
with video facilities to enable appropriate persons in both places
to see and hear each other via the video link.
Proposed section 15YZ provides that if a
proceeding involves a jury, and a witness gives evidence by video
link and that evidence is admissible, the judge must give the jury
a direction to ensure that the jury gives the same weight to the
evidence as if the witness had given the evidence in the
courtroom.
Proposed subsection 15YZA(1) states that a
witness who gives evidence by video link will, in giving that
evidence, be governed by the same laws as they would be if they
were giving that evidence in court, including laws relating to the
rules of evidence, procedure, contempt of court and perjury.
Proposed section 15YZC authorises the court to
make orders as are just for the payment of expenses incurred in
connection with the giving of evidence by video link.
Proposed section 15YZD allows the prosecutor or
defendant to appeal the decision of the court under section 15YV to
give a direction or make an order or refuse to give a direction or
make an order that a witness give evidence by video link.
Item 6 repeals the definition of tape recording
in subsection 23B(1) of the Crimes Act and replaces it with a new
definition to include audio recording, video recording or recording
by other electronic means. This mirrors section 23WA of the Crimes
Act. Item 7 provides that the new definition of
tape recording in section 23B(1) applies to a recording made after
the commencement of this item.
Part 1D of the Crimes Act regulates forensic procedures,
including the obtaining, use and destruction of DNA samples.
Items 8 to 19 propose amendments to Part 1D to
facilitate the sharing of DNA profiles between Australian law
enforcement agencies over a national DNA database system. The
Explanatory Memorandum explains in detail the rules
regarding the matching of DNA profiles with DNA samples under
existing section 23YDAF.
Existing section 23YDAC is a definitions provision. In it, the
expression 'DNA database system', is defined as a database (in
computerised or other form) containing specified indexes. These
indexes are:
-
crime scene index-an index of DNA profiles from
forensic material found at places, on or in victims, on victims'
clothing or belongings, or on persons or things or at places
associated with prescribed offences
-
missing persons index-an index of DNA profiles
from forensic material of missing persons or their volunteer blood
relatives
-
unknown deceased persons index-an index of DNA profiles
from forensic material of deceased persons whose identities are
unknown
-
serious offenders index-an index of DNA profiles from
forensic material taken from
-
serious offenders under Division 6A or a corresponding State or
Territory law, or
-
suspects convicted of a prescribed offence
-
volunteers (unlimited purposes) index-an
index of DNA profiles from forensic material taken from volunteers
under Commonwealth law or under a corresponding State/Territory law
for any purpose for which the DNA database system can be used. It
may include DNA profiles derived from material taken from deceased
persons whose identity is known
-
volunteers (limited purposes) index-an
index of DNA profiles from forensic material taken under
Commonwealth law or under a corresponding State/Territory law for a
specified purpose under paragraph 23XWR(2)(b)
-
suspects index-an index of DNA profiles
from forensic material taken under Commonwealth law or a
corresponding State/Territory law, and
-
statistical index-an information index
compiled for statistical purposes from the analysis of forensic
material taken under Commonwealth law or under a corresponding
State/Territory law.
Section 23YADF contains a table called a matching table which
shows which samples can be matched with which profiles contained in
a database as listed above.
A volunteer is defined in the Crimes Act under
subsection 23XWQ(1) as
meaning a person;
(a) who volunteers to a constable to undergo a forensic
procedure; or
(b) in the case of a child or incapable person whose parent or
guardian volunteers on the child or incapable person's behalf to a
constable that the child or incapable person undergo a forensic
procedure.
The Explanatory Memorandum states that the purpose of
the proposed amendments to the Commonwealth matching table in
section 23YDAF contained in items 8 to 16 is to
streamline the rules governing the matching of DNA profiles by:
-
ensuring that where a volunteer has stipulated a limited
purpose for the use of their DNA profile, their profile can be
matched with other profiles on the DNA database so long as the
match is conducted for that limited purpose and only used for that
limited purpose, and
-
remove the requirement that inter-jurisdictional matching be
confined to a specific investigation.(32)
Items 17 to 19 remove any limitations on
inter-jurisdictional matching under existing section 23YUD.
The Bills
Digest No. 81 (2000-01) on the Crimes Amendment (Forensic
Procedures) Bill 2000 notes in relation to volunteers:
A more general concern about the volunteers
indexes was expressed by the Australian Privacy Charter Council and
the New South Wales Privacy Commissioner. Both took the view that
samples taken from volunteers should only be retained for the
purposes of the particular investigation. The Bill enables samples
in the volunteers (unlimited purposes) index to be retained for as
long as the volunteer agrees. The Australian Privacy Charter
Council remarked:
Whatever the justification for the use of DNA
samples for targeted law enforcement investigations, it should not
be permitted to build up a permanent database of DNA information
about people who are in no way suspected of any wrongdoing.
(33)
The Senate Legal and Constitutional Legislation Committee
inquiry may wish to seek briefings from the relevant agencies
to examine the full ramifications of these amendments.
Items 20 and 21 amend existing paragraph
16(b)(1) of the Financial Transaction Reports Act 1988 (
FTRA ) to ensure that cash dealers are required to report a
transaction to the Director of the Australian Transaction Reports
and Analysis Centre (AUSTRAC) where a cash dealer has reasonable
grounds to suspect that information the cash dealer has may be of
assistance in enforcement of the Proceeds of Crime Act
2002 ( POCA 2002 ) or regulations under it. The paragraph
already applies in the case of the Proceeds of Crime Act
1987.
Items 22 to 25 propose amendments to the
Foreign Evidence Act to allow other types of foreign material such
as video tapes and transcripts of examinations to be treated in a
similar manner to the new video link evidence rules in Part 1AE of
the Crimes Act in terrorism-related trials. These amendments are to
assist in circumstances where it is not possible for evidence to be
given by video link, perhaps because of restrictions under the law
of the foreign country .(34)
Existing subsection 25(1) of the Foreign Evidence Act states
that the court may direct that foreign material not be adduced as
evidence if it appears to the court's satisfaction that, having
regard to the interests of the parties to the proceeding, justice
would be better served if the foreign material were not adduced as
evidence.
Proposed section 25A provides that if a
proceeding is a criminal proceeding for a designated
terrorism-related offence or a proceeding under the POCA 2002 in
relation to a designated terrorism-related offence and the
prosecution seeks to adduce foreign material as evidence in the
proceeding, then the interests of justice test in subsection 25(1)
does not apply.
Instead, like proposed subsection
15YV(1) discussed above, proposed paragraph
25A(1)(d) provides that the court may direct that the
foreign material not be adduced as evidence if the court is
satisfied that adducing the foreign material would have a
substantial adverse effect on the right of a defendant in
the proceeding to receive a fair hearing.
Proposed subsection 25A(3) stipulates that it
is immaterial whether the proceedings for the designated offence or
proceedings under the POCA 2002 in relation to the designated
offence were instituted before or after the commencement of this
section. Therefore, these provisions would have a retrospective
effect.
The Explanatory Memorandum confirms that section 24 of
the Foreign Evidence Act will still apply, so that the foreign
material will only be admissible if the nature of the material is
such that the witness could have given the evidence in person
.(35)
Item 27 inserts new paragraph
(ga) into subsection 297(1)(g) of the POCA 2002. The
paragraph enables payments to be made out of suspended funds in the
Confiscated Assets Account (CAA) in relation to the conduct of
examinations. Under Part 3-1 of the POCA 2002 a court can make an
examination order on the application of the Director of Public
Prosecutions (DPP) where a restraining order has been made against
a person's property. The amendment will empower the DPP to approve
a payment to a third party which has carried out the
examination.
The effect of item 28 is to provide that third
parties, such as the Administrative Appeals Tribunal, which carry
out examinations for the Commonwealth can be paid out of the
confiscated assets account, and retrospectively validates
examinations made by members of the Administrative Appeals Tribunal
under regulation.
Item 29 amends existing subsection 22(1) of the
Surveillance Devices Act 2004 ( SDA ) so that a warrant
can be obtained to retrieve a surveillance device installed under
an authorisation under existing section 39 of the SDA.
The Explanatory Memorandum gives the following example
of the perceived gap in the current regime this amendment is
designed to rectify:
A problem may arise where, for example, a law
enforcement officer has placed a tracking device on a vehicle under
an authorisation (under section 39), but the vehicle becomes
inaccessible because it is moved onto private property. In these
circumstances, the law enforcement officer cannot get a retrieval
warrant under section 22(1) because the subsection does not
currently provide for this. The law enforcement officer also cannot
get an authorisation to remove the tracking device because section
39(8) requires that there is permission to enter onto the premises
or interference with the interior of the
vehicle.(36)
Concluding Comments
There are three interesting questions
about the use of video evidence in terrorism trials related to
this Bill. The first question is whether the prosecution might
gain an unfair advantage in terrorism trials due to the combination
of the provisions of this Bill and other legislative measures such
as the
National Security Information (Criminal And Civil Proceedings)
Act 2004 ( National Security Information Act ).
Ian Harrison QC, President of the
NSW Bar Association has been reported as stating in relation to the
differential tests for the allowance of video evidence in this
Bill:
I have a very significant suspicion that the
dissimilarity was intended to aid the prosecution and disadvantage
the defence. It seems a higher bar to get over for the
defendant.(37)
The combination of video evidence and suppression orders due to
national security concerns under the National Security Information
Act may need to be further examined, as was exemplified by the
Lodhi committal hearings. There have already been criticisms made
by the legal profession of the National Security Information Act,
which gives power to the Attorney-General to directly intervene in
the conduct of a criminal trial if there are national security
concerns.
Brian Walters SC, the head of
Liberty Victoria told ABC Radio PM:
Under this Act, statements of witnesses can be
tendered without cross-examination, summaries of evidence can be
given, such that a prosecution case could be completely
reshaped.(38)
The second question relates to the integrity of the evidence
gained by video-link. Video-link evidence has traditionally been
allowed as an exception to the defendant s right to confront his or
her accusers where the witness is vulnerable, such as child sexual
assault victims. The witnesses envisaged by this Bill may be
prisoners about to be or already incarcerated for terrorism
offences with the possible incentives of a reduction in their
sentence and immunity from further suit.
As noted above, proposed section 15YZ provides
that if a proceeding involves a jury, and a witness gives evidence
by video link and that evidence is admissible, the judge must give
the jury a direction to ensure that the jury gives the same weight
to the evidence as if the witness had given the evidence in the
courtroom. Presumably this means the judge can give any directions
which would be normal in a criminal trial regarding the credibility
of evidence tendered by informants.
The third question relates to the
admissibility of evidence heard under this scheme if there are
suspicions that it has been extracted or influenced by torture of
the witness by foreign agents. The presence of an Australian
observer at the actual time of the giving of evidence may not
suffice to reassure a court that there is not a previous or
continuing threat of torture or inhuman treatment that creates the
situation of duress for the witness. This was an issue raised by
the defence counsel Phillip Boulten SC in relation to the committal
hearing of Mr Faheem Lodhi, as noted above.(39) The
admissibility of evidence gained from witnesses who may have been
tortured in foreign jurisdictions has not been decided upon in
Australia, but it is the subject of current debate and adjudication
by the courts in the US and the UK.(40) Even the limited
legislative safeguard of an observer is not mandatory, and does not
arise at all if the prosecution elects to take video-evidence under
a State or Territory law.
As noted, the tension between secrecy and accountability is
unavoidable in the context of terrorism trials .(41) In
this context, Parliament may wish to seek further clarification
over the following issues:
-
concerns by the legal commentators that the prosecution may be
advantaged over the defence in adducing video evidence
-
how Australian courts will deal with the integrity of video
evidence allowed by this Bill if given by informants, and
-
how Australian courts will deal with the admissibility of video
evidence allowed by this Bill if there is suspicion it has been
tainted by the torture or inhumane treatment of the witness by
foreign agents.
-
The Hon Philip Ruddock MP (Attorney General), House of
Representatives, Debates, 14 September 2005, p.
8.
-
Lee v The Queen (1998) 195 CLR 594 at 602. The position
in Australian law reflects that in international law. Article
14(3)(e) of the International Covenant on Civil and Political
Rights guarantee to accused persons the entitlement to
examine, or have examined, the witnesses who testify against
them.
-
Regina v Marchando [2000] NSWCCA 8 (11 February
2000).
-
For a NSW example, see further Park v Citibank Savings
Ltd (1993) 31 NSWLR 219. Relevant rules are Pt 36 r 2A of the
Supreme Court Rules 1970 (NSW) and O 40 r 1A of the Rules of the
Supreme Court (Qld) - the latter rule also relates to submissions.
In Western Australia, the Video Technology in Courts Steering
Committee concluded that videoconferencing could be suitable for
use in almost any type of case provided adequate safeguards are in
place to protect the rights of all parties. Accordingly the
Acts Amendment (Video and Audio Links) Act gives the court
the power to make an order for a video appearance or sentence as
long as it is in the interests of justice. See s.121(2)
Evidence Act 1906 (WA) and s.14A(2) Sentencing Act
1995 (WA).
-
For example, subsection 46(2) of the Canada Evidence
Act notes: For greater certainty, testimony for the purposes
of subsection (1) [by an overseas witness] may be given by means of
technology that permits the virtual presence of the party or
witness before the court or tribunal outside Canada or that permits
that court or tribunal, and the parties, to hear and examine the
party or witness.
-
Serrin Turner & Stephen J. Schulhofer, The Secrecy
Problem In Terrorism Trials , Liberty & National
Security Project, Brennan Center For Justice, NYU School Of Law,
New York, 2005.
-
The transcript of the committal hearing is not available, so the
summary relies on media reports and an article by the Defense
Counsel, Phillip Boulten SC, 'Australia's Terror Laws: The Second
Wave', Australian Prospect, (Special Article), October
2005.
-
See further Phillip Boulten SC, 'Australia's Terror Laws: The
Second Wave', Australian Prospect, (Special Article),
October 2005.
-
Boulten, op. cit., p. 7.
-
Marian Wilkinson and Les Kennedy,
Secrecy to surround trial for terrorism , Sydney Morning
Herald, 11 June 2005. Natasha Wallace,
Court battle over secret evidence , Sydney Morning
Herald, 18 December 2004.
-
Peta Donald, Police notes
withheld from Lodhi defence lawyers , ABC Radio PM,
17 December 2004.
-
Amy Coopes, Sydney terror trial on hold , AAP, 22
December 2004
-
Marian Wilkinson and Les Kennedy,
Secrecy to surround trial for terrorism , Sydney Morning
Herald, 11 June 2005.
-
AAP,
Terror suspect admits training with Brigitte , The
Age, 4 May 2005.
-
Peta Donald, US deems its
witness in Australian terrorism case unreliable , ABC Radio
PM, 16 December 2004. Natasha Wallace,
Lodhi witness admits his jihad exploits largely involved drinking
tea Sydney Morning Herald, 17 December 2004.
-
Phillip Boulten SC, 'Australia's Terror Laws: The Second Wave',
Australian Prospect, (Special Article), October 2005, pp.
7-8.
-
Amy Coopes, Sydney terror trial on hold , AAP, 22
December 2004.
-
Grollo v. Palmer (1995) 184 CLR 348 at 364
5.
-
Fiona Wheeler, Federal judges as holders of non-judicial office
, in Fiona Wheeler & Brian Opeskin (eds) The Australian
Federal Judicial System, 2000.
-
ibid, p. 461.
-
Grollo v. Palmer (1995) 184 CLR 348 at
367.
-
(1996) 189 CLR 1.
-
Explanatory Memorandum, p. 2.
-
Section 34B of the ASIO Act was subsequently amended to omit
Federal Magistrates.
-
Explanatory Memorandum, p. 4.
-
Explanatory Memorandum, p. 6.
-
Accessed 10 October 2005.
-
This phrase is judicially considered by the Q v
Seymour (1993) A Crim R 514 in the context of in camera
proceedings in the Federal Court.
-
Explanatory Memorandum, p. 5.
-
The Hon Philip Ruddock MP (Attorney General), House of
Representatives, Debates, 14 September 2005, p. 8.
-
Explanatory Memorandum, p. 7.
-
ibid, pp. 9 11.
-
Jennifer Norberry, Crimes Amendment (Forensic Procedures) Bill
2000 , Bills
Digest No. 81 (2000-01), Parliamentary Library, Canberra,
30 January 2001.
-
Explanatory Memorandum, p. 12.
-
ibid.
-
ibid, p. 14.
-
Joseph Kerr and Cynthia Banham,
New rules raise bar against defendant , Sydney Morning
Herald, p. 2.
-
ABC Radio, National
security obstacle to Melbourne terror trial , PM, 27
September 2005. See also Elizabeth Colman, Ruddock changing the
rules says terror lawyer , The Australian, 11 February
2005, p. 6.
-
For example, in the US prosecution of Zacarias Moussaoui, the
government has claimed that certain detainees cannot be made
available to testify as witnesses in a trial proceeding (even by
remote video) for national security reasons, for fear of
interrupting ongoing interrogation efforts. Turner and Schulhofer
(op cit) note that the difficulty with using these detainees as
witnesses, however, may have less to do with national security
concerns than other reasons, not the least of which is the
possibility that the information they provided regarding Padilla
was extracted through coercive methods .
- In the UK, a special nine-judge panel of the House of Lords
Judicial Committee convened on 4 October 2005 to consider whether
evidence from third countries obtained under torture can be used in
indefinite detention cases. The point arises from a separate August
2004 majority ruling by the Court of Appeal that such evidence can
be used provided the UK neither procured nor connived at the
torture (A, B, C and Another v the Secretary of State for the
Home Department [2004] EWCA Civ 1123).
On 6 October 2005, the US Senate added an amendment to a
Pentagon money bill to place clear limits on interrogation
techniques on suspected terrorists and other detainees in US
military prisons. See also Stephen Grey, US
accused of torture flights , The Sunday Times, 14
November 2004.
- The government inevitably has secrecy concerns related to
intelligence activities both its own intelligence activities and
those of other countries. Some secrets cannot be disclosed, or at
least not without a cost Yet the same assertions of government
secrecy can cloak malfeasance, lies, and even possible torture...
By stripping the defendant of the ability to probe weaknesses in
the government s evidence, secrecy threatens to turn a criminal
trial into an empty ritual drained of the adversarial features that
are its very reason for being Serrin Turner & Stephen J.
Schulhofer, The Secrecy
Problem In Terrorism Trials , Liberty & National
Security Project, Brennan Center For Justice, NYU School Of
Law, New York, 2005.
Sue Harris Rimmer
12 October 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2005
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Published by the Parliamentary Library, 2005.
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