Chapter 3 - Key Issues
3.1
This chapter discusses the key issues and concerns
raised in submissions and evidence, first in relation to the video link and
foreign evidence provisions of the Bill, and then
other provisions of the Bill.
Video link and foreign evidence
3.2
Most evidence received by the committee focussed on the
video link and foreign evidence provisions of the Bill.[16] Key issues and concerns raised in
relation to these provisions are discussed below and include:
-
the need for the new laws;
-
the different tests for the prosecution and
defence;
-
the observer provisions;
-
the integrity of video link and foreign evidence;
and
-
the potential for retrospective application of
the provisions.
Need for the new laws
3.3
A representative of the Attorney-General's Department (the
Department) stated that the purpose of the Bill
is to increase 'certainty in terrorism cases when the DPP finds a need to
proceed on the basis of video link evidence'.[17]
The representative further explained that:
There is an assumption that video link evidence is reliable and
cogent and should be used in appropriate cases.[18]
3.4
Similarly, in support of the Bill,
the DPP submitted that, in its experience in prosecuting terrorism and related
offences:
...it is likely that relevant evidence will need to be adduced
from witnesses who themselves may have been involved in terrorist related
conduct and who cannot for reasons of security or practical reality be brought
before an Australian court to give evidence in person. Indeed because of the
extra territorial operation of many of these provisions, overseas evidence is
more likely to be required to prove the offences.[19]
3.5
The DPP also expressed its belief that:
There is a clear public interest and expectation that these
cases will be brought before the courts promptly and efficiently
notwithstanding the difficulties in adducing evidence from witnesses who are
overseas or otherwise unavailable to give evidence before the courts in Australia.[20]
3.6
The Gilbert and Tobin
Centre of Public Law acknowledged that the Bill
would, on the whole:
...improve the processes surrounding the prosecution of terrorist
offences. In particular, the central aim of the Bill
to better facilitate the hearing of evidence which might not otherwise be
accessible to Australian courts is of great value.[21]
3.7
Dr Andrew
Lynch of the Gilbert
and Tobin Centre of Public Law reiterated this at the committee's hearing:
...at the base of our submission is an understanding as to why the
bill has been drafted and an appreciation as to its overall purpose. The
difficulty of prosecuting terrorist offenders may well be compounded by the
absence of persons from the jurisdiction who could act as key witnesses. This
bill proposes a solution to that problem, so as to ensure that courts have
access to necessary testimony.[22]
3.8
However, Dr Andrew
Lynch of the Gilbert
and Tobin Centre of Public Law nevertheless suggested some changes to certain
provisions of the Bill to ensure that the use of
video link and foreign evidence 'will not unacceptably risk the occurrence of a
miscarriage of justice'.[23] As Dr
Lynch explained:
Our concern is not with the essence of the bill but rather with
the processes which it presently favours. While it is important that courts
have access to all relevant evidence, it is vital that that evidence is
reliable and that the fairness of the trial process is beyond reproach so that
the public can have confidence in the conviction of terrorists by the
Australian court system. There is nothing to be gained by finding the innocent
guilty, and much to be lost by doing so...[24]
3.9
Similarly, Australian Lawyers for Human Rights (ALHR)
stated that, while it was not opposed to the use of video link evidence, it was
concerned about specific aspects of the Bill,
and suggested that certain provisions needed to be 'tweaked'.[25] These issues and concerns are
discussed further below.
Video link evidence - different tests for prosecution and defence
3.10
As outlined in Chapter 2, the video link provisions of
the Bill apply a different test depending on
whether the prosecution or defence has applied for a direction or order that a
witness give evidence by video link. Under proposed section 15YV of the video
link provisions, where the prosecutor applies for the direction or order, the
court must direct or allow the
witness to give evidence by video link unless satisfied that the direction or
order would have a substantial adverse
effect on the right of the defendant in the proceedings to receive a fair
hearing. Where the defendant applies for the direction or order, the court must direct or allow the witness to give
evidence by video link unless satisfied that it would be inconsistent with the interests of justice for the evidence to be
given by video link.
3.11
The Gilbert and Tobin
Centre of Public Law, ALHR and the Human Rights and Equal Opportunity Commission
(HREOC) were all concerned by the application of a different standard depending
on whether the prosecution or the defence wished to adduce video link evidence.[26]
3.12
A representative of the Department acknowledged that
there are two different tests in the legislation, and explained that:
The reason that there are two tests is not because we are
seeking to set different standards for prosecution and defence but to reflect
the different role that is played in the prosecution process by the prosecution
and by the defence. The tests for both of them, in fact, raise the bar fairly
high or fairly low, depending which way you look at it. The purpose of these
provisions is to allow evidence to be called by video link. They go beyond the
current test which is set in state laws, and they say that the court must allow
video link evidence, except subject to the discretion of the court. When you
start drafting provisions which pick up that test and apply it, you find that
is very difficult not to have different tests for the prosecution and the
defence.[27]
Arguments against the different tests
3.13
However, several submissions were concerned that the
different tests would mean the court would have a narrower discretion to
disallow prosecution evidence when compared to defence evidence. They concluded
that this could favour the prosecution over the defence.[28]
3.14
For example, ALHR argued that the proposed provisions
in the Bill would put the prosecution in a
'privileged position':
There is a clear disparity between the test the defence must
establish to oppose an application by the prosecution to adduce evidence by
video link and that which applies to the prosecution seeking to oppose an
application by the defence. The prosecution is undoubtedly in a privileged
position. This offends the principle of fairness in criminal trials which is a
well understood tenet of the Australian common law and is also protected by
international human rights standards.[29]
3.15
In ALHR's opinion, the use of two different tests could
have important implications:
By using two different tests for video link evidence
applications the legislation impliedly requires a court to allow in evidence
which would not pass the 'interests of justice' test but would pass the
'substantial adverse effect' test. That is, there is a category of evidence
which it would not be in the interests of justice to allow but with regard to
which the defendant cannot show a substantial adverse effect on his or her
right to receive a fair trial.[30]
3.16
ALHR explained why it felt that the 'substantial adverse
effect' test is difficult for a defendant:
First, the Court must be satisfied that the evidence would have such an effect not may have such an effect. To meet that
test the defence will have to establish with great certainty the adverse nature
of the evidence before the evidence has been given. Quite prematurely and
unfairly a defendant may have to use evidence from his or her own case in order
to challenge the application.[31] [emphasis added]
3.17
During the committee's hearing, Mr
Simeon Beckett
from ALHR further expressed the view that:
That term 'inconsistent with the interests of justice' is about
the weighing up of the rights of the prosecution, if you like, against the
rights of the defendant, so it is a much more balanced test. It is a very even
test that allows both the prosecution and the defence cases to be taken into
account whether you apply it. Whereas the other [test] is set at a very high
level with respect to defendants, but curiously does not take into account the
prosecution's case.[32]
3.18
In the same vein, the Gilbert
and Tobin Centre of Public Law was concerned that the different standards would
mean that 'the Bill markedly favours the
prosecution over the defendant in the ability to adduce video evidence'.[33] Dr
Lynch further explained his view of the
practical impact of requirement for the defendant to show 'substantial adverse effect':
The effect of that in practice would be to require the defendant
to explain to the court why he or she thinks that is so, which certainly
affects the way in which they conduct their defence...it is also simply a much
higher bar for objecting to the use of that evidence, whereas, when the
defendant seeks to, the prosecution is able to appeal to the interests of
justice test. There does not seem to be a convincing case as to why that test
cannot apply to both...the consequence of denying the defence a fair ability to
block evidence which may well be highly damaging to their case but which might
be unreliable and result in a false conviction does not seem to be a policy worth
pursuing.[34]
3.19
Dr Lynch
concluded that the use of the different tests was 'unjustified':
It poses the risk of that conviction of people using that kind
of evidence is potentially open to error, and that is not in anybody's
interest—certainly not those persons' interest. Also, for public confidence in
the court system, it is important to be able to say that when we have convicted
terrorists, it is because they have been given an entirely fair trial and not
open up the Australian court system to the criticism that the odds have been
stacked against those people.[35]
3.20
Finally, Dr Lynch
responded to arguments put forward by the Attorney-General during the second
reading debate in the House of
Representatives:
The Attorney-General says that we cannot apply the same standard
when the defendant makes an application, because it would be nonsensical to
apply the standard that applies when the prosecution makes an application that
there is a substantial adverse effect upon the defendant's case. That has a
superficial logic, but I would suggest that the problem is with starting with
the 'substantial adverse impact' test in the first place.[36]
3.21
Similarly, HREOC discussed the differences between the
two tests set out in the video link provisions. HREOC noted that the 'interests
of justice' test reflects some of the existing state and territory provisions
concerning evidence by video link. However, it differs because the onus, for
example in the NSW legislation, is upon the party seeking to adduce evidence by
video.[37] HREOC suggested that the
'interests of justice test' is more flexible when contrasted with the test of
'substantial adverse effect'.[38]
3.22
In HREOC's view, the test of 'substantial adverse
effect' would:
...not be satisfied by the defence merely demonstrating some
degree of disadvantage to the accused – any disadvantage must be of a
sufficient degree to affect the fairness of the hearing itself.[39]
3.23
Further, HREOC argued that, in the absence of a more
narrow definition, a court could find that it contemplates adverse effects which
are 'considerable or big'.[40] However,
HREOC cautioned that:
It is particularly difficult to predict the manner in which the
'substantial adverse effect' test would be applied by a Court. This is because
of the ambiguous nature of the word 'substantial' and the absence of a
definition in the Bill.[41]
3.24
As Mr Craig
Lenehan of HREOC stated, 'it is unclear to
us why a definition has not been included in this bill'.[42] In particular, HREOC noted that the
phrase 'substantial adverse effect' is used in other legislation, and in
particular, the National Security
Information (Criminal and Civil Proceedings) Act 2004 (the National
Security Information Act). Section 7 of the National Security Information Act
defines 'substantial adverse effect' to mean:
...an effect that is adverse and not insubstantial, insignificant
or trivial.
3.25
In response to the committee's questioning on the meaning
of 'substantial adverse effect', a representative of the Department told the committee
that the drafters presumably took the view that it was not necessary to put a
definition in this Bill because it 'is beyond doubt how a court will construe
it'.[43] He further stated that it 'means
more than minimal and that is how, in my opinion, a court would read it.'[44]
3.26
However, HREOC further submitted that regardless of how
'substantial' is construed, in its view:
...it is important to recognise that the Bill
contemplates that the defendant will be subjected to a degree of disadvantage
which exceeds that [which] would be tolerated under existing Australian procedural
safeguards. It specifically countenances that there will be some infringement
of the defendant's right to a fair hearing...[T]his involves a significant step
away from the safeguards which have until now been placed upon the use of video
link evidence.[45]
3.27
HREOC, the Gilbert and
Tobin Centre of Public Law and ALHR all suggested that the same standard should
govern the courts' discretion to allow evidence via video link, regardless of
which party makes the application. They
all proposed that the 'interest of justice' test would be the appropriate
standard.[46] Mr
Craig Lenehan
of HREOC argued that:
...by imposing that same test on both defence and prosecution you
are not going to be, in our view, knocking out a whole lot of evidence that
should be before the court; you are going to be preventing the adducing of
evidence that should not be before the court.[47]
3.28
In addition, HREOC suggested that, in deciding whether
it will be inconsistent with the interests of justice for evidence to be given
by video link, the court should be required to consider whether, having regard
to the circumstances of the proceedings as a whole, the direction or order
would violate the right of the accused to a fair hearing.[48]
Arguments in favour of the different tests
3.29
However, representatives of the Department and the DPP argued
that the provisions of the Bill were appropriate.
They disagreed with the suggestion that the same test – inconsistent with the 'interests
of justice' – should be used for both the prosecution and defence.
3.30
The DPP acknowledged that the provisions reduce the
discretion of the court to allow evidence by video link in prosecutions for
terrorism related criminal proceedings.[49]
However, the DPP argued that 'the proposed Bill
would not give the prosecution a greater advantage than the defence in seeking
to adduce video link evidence.'[50]
3.31
Dr Andrew
Lynch of the Gilbert
and Tobin Centre of Public Law responded to this argument:
...if it [the difference] does not confer a greater disadvantage
or advantage, you would wonder why it is there in the first place...I cannot see
any reason for not having a common test and leaving it to the discretion of the
judge in the individual case. If it does not disadvantage the defence relative
to the prosecution then why isn't the test expressed in the same way?[51]
3.32
However, a representative of the Department told the
committee that:
...when you look at the two tests, they achieve the same basic
result, the same policy outcome but with different wording to reflect the
different roles.[52]
3.33
The representative explained further that the policy
underlying the Bill was to 'encourage and
promote the use of video link evidence.'[53]
To achieve this, the policy approach was to:
...apply the same approach to the prosecution and the defence,
which is to put both bars as high as you can—to allow video evidence except in
those cases where it would be inappropriate to allow it in terms of fairness
and justice—you could put it higher for the prosecution than for the defence or
at a different point for the prosecution than the defence because of the
different roles that are played by the defence and prosecution in the criminal
process...The difference between the two tests, we would say, is a matter of
form and not of substance. The substance of the two tests is the same.[54]
3.34
At the same time, the representative rejected the use
of the 'interests of justice' test for the prosecution, 'because the interests
of justice test is lower than the test here', and it would conflict with the
policy approach outlined above.[55]
3.35
The representative also disagreed with suggestions that
'substantial adverse effect' would be too difficult for the defence to prove,
arguing that:
...this is a provision designed to protect the rights of
defendants in the criminal process. The courts are not going to read that provision
as setting the bar particularly high.[56]
3.36
The representative continued:
If that has the potential to affect the outcome of the trial
then it has a substantial adverse effect on the rights of the defendant. The
defendant does not have to show that they are actually going to be convicted
when they might otherwise be acquitted. They are going to show that if that
evidence comes in in that form there is a reasonable prospect that they might
lose a reasonable chance of acquittal.[57]
3.37
A representative of the Department also suggested that
the defence test was also a difficult test for the prosecution to meet 'because
the court has to take the evidence unless it would be inconsistent with the
interests of justice.'[58]
3.38
A representative of the DPP agreed:
I do not see that in all situations the bar is necessarily
higher for defendants than it is for the prosecution. I think it is more
flexible. It would allow courts to take into account the importance of the
defence being able to call evidence which was vital to their defence, even
though we might have no notice of it. It might be called in circumstances
where, if you looked at it strictly, you could say that it was unfair to the
prosecution. That is the first issue. The second issue about the test for the
prosecution is that courts jealously guard the right to a fair trial.[59]
3.39
Indeed, the DPP submitted that:
The requirement that the adverse effect be substantial is
appropriate in light of the argument that may be available that there is an
adverse effect by the mere fact that the witness is not physically present in
the courtroom. To lessen this test would run the real risk of not providing for
the necessary level of assurance in these cases that the evidence may be called
by video link.[60]
3.40
However, HREOC responded to this, noting that:
That is exactly the argument that, in the context of a
requirement for fairness in the New South Wales legislation, the Court of
Criminal Appeal rejected in Ngo...The court said there that, by virtue of
parliament having enacted legislation to take video link evidence, you have to
accept that there is going to be some disadvantage to a defendant. The
distinction that the court made between that sort of disadvantage and an unfair
hearing was a large one. That is the distinction that we also seek to make. So
what is actually contemplated here... [goes] into the actual fairness of the
trial rather than simply disadvantaging litigants.[61]
3.41
The DPP also argued that, under current state
legislation which requires a court to be satisfied that it is in the interests of
justice that the evidence be adduced by video link:
Some courts have in the past been reluctant to make such orders
in the trial of serious offences in the light of the common law's traditional
approach to a defendant being entitled to face his or her accusers in
person...there is a need for greater certainty than currently exists to ensure
that evidence can be called by video link in these prosecutions...[62]
3.42
The DPP argued that the provisions would therefore
provide a 'greater degree of certainty for both the prosecution and defence as
to what evidence may be relied on in court in these important prosecutions'.[63] However, Mr
Lenehan of HREOC argued that the uncertainty
would in any case be resolved by use of the word 'must' in the relevant
provisions of the Bill:
That then confines the discretion of the court, so the court
'must' allow the evidence to be adduced, save in these circumstances...Judges to
date have had very broad discretion to allow this evidence to be adduced. It is
true that some of them have started from the point of view that the best
evidence is in-person evidence and that there need to be good grounds shown for
video link evidence to be allowed. Other judges have started from the point of
view that this is a good and useful technology and compelling circumstances
need to be shown for it not being used. You solve that apparent impasse by
creating, as in our submission, a section which uses the word 'must'. It does
not require a bifurcated test for the prosecution and defence.[64]
3.43
However, to further support their arguments in favour
of the different tests proposed by the Bill, the
DPP submitted that:
...the tests, although framed in different terms, are appropriate
in light of the different considerations that would be present when assessing
the issue of admitting evidence by video link during the prosecution and
defence cases.[65]
3.44
Similarly, a representative of the Department explained
that:
The prosecution have duties and obligations that the defence do
not have. The prosecution have duties of disclosure; they have to put on their
case through a committal proceeding. The defence do not have to present their
case or call or identify their witnesses until the matter comes before the
court. The difference in the tests flows from that difference in role.[66]
3.45
In particular, the DPP pointed to the disclosure
requirement on prosecutors:
The prosecutor is required to disclose to the defence not only
all the evidence that the prosecutor intends to adduce during the hearing of
the case but also any unused material that may be relevant to the credibility
of prosecution witnesses...[67]
3.46
In response to this, HREOC submitted that:
...the more onerous disclosure duties imposed on the prosecution
are designed to create equality of arms between the parties and ensure a
defendant has a fair trial.[68]
3.47
HREOC remarked that:
...it is a surprising suggestion that the defence should be
effectively 'penalised' by reason of a feature which is recognised, in
international and domestic law, as an important component of a fair hearing.
That is particularly so when the 'penalty' involves the application of a more
onerous test for resisting the adducing of video link evidence, thus violating
the principle of equality of arms which is another key feature of a fair
hearing.[69]
3.48
HREOC also pointed out that full disclosure by the
prosecution may not necessarily occur under the National Security Information
Act.[70] Indeed, HREOC argued that the
cumulative effect of orders made under the provisions of the Bill
and the National Security Information Act could result in an unfair hearing.[71] HREOC explained:
For example, the inability of defence Counsel to closely observe
a witness' demeanour in a matter where the witness' credibility is a central
issue may not be sufficient to conclude that the use of video link evidence
will lead to an unfair hearing. However, if defence counsel is also denied
access to security sensitive documents which impeach credibility (following the
making of an order under the National Security Information Act), the cumulative
obstacles placed upon the defence may result in the hearing being unfair.[72]
3.49
HREOC therefore suggested that the courts should be
specifically directed in proposed section 15YV to take those possibilities into
account in deciding whether to permit the use of video evidence by the
prosecution – that is, the courts should be required to have regard to the
circumstances of the proceedings as a whole.[73]
3.50
However, in response to concerns about limitations on
prosecution disclosure under the National Security Information Act, a representative
of the DPP told the committee that:
If it gets to the point where we think there is material that
would impact on a witness we wanted to call and we were precluded from
disclosing that material because of security requirements, in all probability
in the end we would not call that witness.[74]
Obligations under international law
3.51
Some submissions also discussed whether the different
standards proposed by the Bill could breach Australia's
obligations under international law. For example, HREOC raised concerns about
the Bill's provisions in the context of Article
14 of the International Covenant on Civil
and Political Rights (ICCPR):
...the Court should have a flexible discretion to avoid the
violation of the right of an accused to a fair hearing. Regrettably, the Bill
contemplates at least some infringement of that right and may (depending upon
the interpretation given to 'substantial') envisage violations which are
characterised as considerable or large.[75]
3.52
Mr Lenehan
of HREOC considered that video evidence in itself would not give rise to an
issue under Article 14(1) of the ICCPR.[76]
However, HREOC argued that the Bill's provisions
are 'objectionable' because of 'the imbalance created between the ability of
the prosecution and defence to call video evidence.' HREOC concluded that the
current provisions of proposed section 15YV favour the prosecution, and
therefore violate the principle of 'equality of arms', which is fundamental to Articles
14(1) and (3)(e) of the ICCPR.[77]
3.53
Similarly, ALHR expressed the view that 'the privileged
position in which the prosecution is put by virtue of s.15YV(1) clearly offends
Article 14(3)(e) of the ICCPR.'[78] The
ALHR further emphasised that:
No specific justification is made by the government for
overriding this human right other than it will allow 'important evidence from
overseas witnesses [to] be put before the court using video link technology'. This facility already exists and is referred
to above.[79]
3.54
However, a representative of the Department took the
position that the two tests do not breach the ICCPR, on the basis of their
argument, as outlined above, that the two different tests proposed by the Bill
achieve the same basic result and the same policy outcome but with different
wording to reflect the different roles.[80]
Observers
3.55
Submissions also raised issues in relation to the
appointment of observers under proposed section 15YW of the video link
provisions.[81]
3.56
ALHR supported the provision for the court to appoint
observers, but was nevertheless concerned that this proposed safeguard was
'weak'[82] and should therefore be
'tweaked'.[83] ALHR suggested that the
role of the observer is too limited, because the observer is only empowered to
'observe' the giving of evidence by the witness.[84] In particular, ALHR highlighted that
the observer will not be empowered:
-
to provide documents to a witness as they are
cross-examined; nor
-
to report on intimidation applied to the witness
outside of the giving of evidence, even if they become aware of acts outside of
the giving of evidence which would be relevant, such as intimidation of the
witness outside the room where the evidence is given.[85]
3.57
Mr Beckett
from ALHR gave an example in relation to this last point:
There is a degree of ambiguity about that. Let us take an
extreme example: evidence that is being taken in a cell or in a room in a jail
overseas. If the observer, when arriving, sees something [such as intimidation]
that occurs just prior to the giving of evidence, I think it is strongly
arguable that it does not fall within the power of the observer to report that
to the court.[86]
3.58
However, a representative of the Department suggested
that, while the provision is expressed in terms of 'what is observed in
relation to the giving of evidence', it was arguable that the giving of
evidence could be influenced by matters that are observed prior to the taking
of evidence. For example:
...if, during the course of performing their role as an observer,
they see anything that is relevant to the way the witness has given evidence,
they can report it to the court. The other point is that there is no
prohibition on what the observer can tell the court or the defence. So if the
observer hears something while they are chatting or talking to someone that
might be relevant for the defence to know, nothing in here says they cannot get
on the telephone or tell the judge...[87]
3.59
ALHR also queried whether the observer would be truly
independent, particularly if a diplomatic or consular officer were appointed as
an observer:[88]
That means that a member of one arm of the executive may be
taken to be 'independent' of another arm of the executive, namely the
prosecution. Accordingly, there appears to be no prohibition on members of Australia's
security agencies filling the role of observer as long as they are 'independent
of the prosecutor'. That is clearly an unsatisfactory situation because it
affects the independence of the proceedings.
A preferable form of independence for an observer may be achieved
through use of the local legal profession or an Australian legal officer agreed
upon between the parties.[89]
3.60
Similarly, Mr Lenehan
of HREOC pointed out:
...there is a requirement under section 15YW(5), which is the
observer's provision, that the observer must be independent of the prosecutor.
However, it is made equally clear in subsection (6) that the observer does not
need to be independent of the Australian executive government. Potentially, you
are getting into a realm where you could be splitting hairs as to whether, say,
an ASIO agent is independent of the prosecution. Arguably they are if they are
not directly involved in the bringing of criminal proceedings—or maybe not. It
is left unclear; it should perhaps be better specified.[90]
3.61
In response to these concerns, a representative of the Department
suggested that a court would not find an ASIO officer or police officer to be
independent of the prosecutor or the prosecution, but that, on the other hand,
a consular official may be entirely appropriate.[91] The representative further emphasised that
the observer provisions are a matter for the court: the court will specify who
the person is, and it is the court that 'must be satisfied that the person is
independent of the prosecutor and independent of the defendant.'[92]
3.62
ALHR also noted that the use of the observer's report
would be limited to whether the evidence concerned should be admitted. ALHR
pointed out that:
One can conceive of a case where the observer's report does not
cause the court to refuse the admission of the evidence but instead the report
affects the weight which may be placed on the evidence. The legislation as
drafted does not allow for the judicial member to take weight into account or
to instruct the jury on the issue of the evidence's weight.[93]
3.63
Mr Beckett
of ALHR elaborated on this for the committee:
Even if it is admitted, if it is a judge alone trial then
perhaps the judge should be able to give differential weight to that report in
terms of how the evidence that is allowed by video link and has been admitted
goes to the issues in contention. Obviously, if it is a trial then the judicial
member should be able to instruct the jury about the weight perhaps to be given
to the evidence on the basis of the expert's report.[94]
3.64
The Gilbert and Tobin
Centre of Public Law supported the observer provision 'as an important
safeguard by which the integrity of the video evidence may be assured'.[95] However, the Gilbert
and Tobin Centre of Public Law argued that:
...the safeguard could be strengthened by removing the
discretionary aspects of section 15YW. At present, the Court need neither
appoint an observer (subsection 1) [nor] require a report if one is appointed
(subsection 7). Although we suspect reasons of convenience and practicality
underlie the present approach, it would be preferable for the legislation to
require an observer in respect of all section 15YV directions or orders and for
that person to make a report to the court as a matter of course.[96]
3.65
Dr Lynch
from the Gilbert and Tobin Centre of Public Law further
observed during the committee's hearing that:
...other than suggesting that there be some Australian diplomat on
hand to observe the process, there is no other provision in the bill for what
is required. It says that there is the technology available to do it. But there
is no provision, as one of the other submissions raises, for someone to hand
documents to the witness. I think there is the appointment of someone to
administer the oath but it does not specify that that is not to be the observer
either. The circumstances under which the evidence is given locally are quite
free-form.[97]
3.66
Similarly, HREOC also suggested some improvements to
the observer provisions proposed by the Bill. In
particular, HREOC submitted that:
15YW does not specify the matters a Court must consider when
determining whether to make the presence of an observer a condition of
receiving video evidence. This will make a refusal to exercise that widely
drafted discretion more difficult to challenge.[98]
3.67
HREOC further proposed that the defence should be able
to insist upon the use of an observer, at least in certain circumstances.[99]
3.68
However, a representative of the Department responded
that the provisions deliberately left the discretion with the court in order to
be 'flexible' and 'facilitative', particularly 'because of the range of
situations in which you might want to take video link evidence.'[100] The representative further pointed
out that, in practice, if the defence wanted an observer to be appointed, it
was likely that the court would take that into account.[101] However, the representative also
observed that:
The point is that, under this legislation, the role of observers
is limited. They are there as the eyes and ears of the judge. They are there to
observe the proceedings as they occur and report to the judge. They are there
to protect the integrity of the court proceedings so that the judge in Australia
can be confident that nothing is happening off camera that they cannot see.
That person is not there to protect the rights of the defendants or to regulate
the activities of the foreign investigators or the foreign authorities.[102]
3.69
Finally, HREOC was concerned that the provisions for
appointment of observers 'do not provide adequate safeguards against the
admission of evidence tainted by torture'.[103]
In particular, HREOC argued that the provisions:
...will not facilitate scrutiny of the treatment of the witness
away from the location where evidence is being given (which may be of
particular concern where the witness is being detained)...Australia is under a
positive obligation to ascertain whether any evidence given under the Bill is made
as a result of torture or other cruel or inhuman treatment. The Commission
would recommend that proposed s15YW be expanded to allow the Court to seek
information on a wider range of matters including, where relevant, conditions
of detention.[104]
3.70
The issue of evidence tainted by torture is discussed
further later in this chapter.
Foreign evidence
3.71
Submissions and evidence received by the committee generally
concentrated on the video link provisions in Part 1AE of the Crimes Act.
However, the concerns raised in relation to the different tests for the
prosecution and defence also extended to the proposed amendments to the Foreign
Evidence Act.[105]
3.72
Indeed, for some submitters, the lack of provisions for
the appointment of an independent observer in the amendments to the Foreign
Evidence Act exacerbated their concerns in some contexts, such as situations
where evidence may have been procured through torture or inhuman treatment.
This issue is discussed in more detail below.
3.73
The committee also notes that there are differences
between the Foreign Evidence Act provisions and the proposed video link
provisions. In particular, under the video link provisions, as noted earlier,
the court must allow video link evidence
unless the court is satisfied that it
is inconsistent with the interests of justice or would have a substantial
adverse effect on the right to receive a fair hearing. In contrast, under the
Foreign Evidence Act, the court may direct
the foreign material not be adduced if the
court is satisfied that, having regard to the interest of the parties, justice
would be better served if the foreign material were not adduced as evidence.[106] The Bill does not propose to change
the wording currently used under the Foreign Evidence Act, but would simply
change the test for the prosecution in the case of 'designated offences' to the
standard of 'substantial adverse effect'.[107]
3.74
In response to the committee's questions as to why this
approach was taken, a representative of the Department suggested that the
changes would 'achieve the same result'. [108] That is:
We felt that it was the same as the interests of justice test in
the video link bill. So we felt that we did not need to change it but that we
did need to narrow the test for the prosecution to make it the same as the
video link test. Thus we have added in the prosecution test for the foreign
video link provisions.[109]
3.75
Another representative further explained that:
The Foreign Evidence Act is part of the suite of legislation
which hangs on the [Mutual Assistance in
Criminal Matters Act 1987], as you know, and also interacts with state
evidence laws. It is a complicated and difficult piece of legislation to work
with...[I]t was just felt that it would be better to make minimal changes if
there was a need to do so. [110]
Integrity of evidence
3.76
Submissions also raised issues as to the integrity of
video link and other foreign evidence, such as evidence tainted by torture or
inhumane treatment. These issues are discussed below.
Evidence tainted by torture
3.77
Several submissions were particularly concerned about
situations where there was a possibility that foreign evidence may have been procured
through torture or inhuman treatment.[111]
3.78
The Gilbert and Tobin
Centre of Public Law submitted that, while this could also be an issue of
concern in relation to the proposed video link provisions in the Crimes Act,
the use of an observer would reduce that possibility somewhat. However, the Gilbert
and Tobin Centre of Public Law highlighted that, in relation to the Foreign
Evidence Act:
...in the context of use of foreign material already existing that
safeguard is not an option. Thus the danger of evidence having been produced in
violation of fundamental human rights is more pronounced. Although it might be
argued that any evidence tainted by torture would still fall foul of the
standard in section 25A(1)(d) or the existing requirements for testimony under
section 22 of the Act, some more express safeguard is in order.[112]
3.79
Dr Lynch
from the Gilbert and Tobin Centre of Public Law acknowledged
during the hearing that the legislation would not prevent a court from
excluding evidence on the basis that it was tainted by torture. Nevertheless,
the Centre declared that:
This Bill is an excellent
opportunity for the Commonwealth Parliament to affirm its abhorrence of the use
of torture in the procurement of evidence.[113]
3.80
The Gilbert and Tobin
Centre of Public Law therefore suggested that:
The changes to the Foreign Evidence Act should include an
express ground for the court to refuse an application for use of foreign
evidence where the court is not satisfied that the evidence in question was not
obtained through the use of torture or inhuman and degrading treatment or
extraordinary rendition (effectively torture by proxy).[114]
3.81
Mr Lenehan
of HREOC also raised concerns that:
... the video evidence link amendments do not provide sufficient
safeguards to ensure that Australian courts exclude evidence obtained as a
result of torture or other cruel, inhuman or degrading treatment.[115]
3.82
HREOC acknowledged that it would expect that evidence
obtained through torture and similar means would, as a practical matter, be
excluded. Nevertheless, HREOC considered that:
...the possibility remains that it may be admitted as a matter of
discretion. Given that there appears to be grounds for concern about video link
evidence which may be adduced under the Bill from witnesses testifying in
foreign states, the Commission considers that it would be desirable to remove
any such discretion and simply proscribe the admission of such evidence, at
least where it is adduced via video link.[116]
3.83
More specifically, in relation to the amendments to the
Foreign Evidence Act, HREOC submitted that:
...unlike the amendments to the Crimes Act, there has been no
attempt to provide for that possibility through the mechanism of an observer...the
Court should be able to impose such conditions on the receipt of evidence under
the FEA [Foreign Evidence Act]. The inclusion of that power is particularly
important if limitations are to be placed upon the Court's power to refuse to
allow such evidence to be adduced.[117]
3.84
In particular, Mr
Lenehan observed that 'we do not see why
there should not be safeguards there to similar effect to the ones we propose
for the video evidence link provisions'.[118]
Mr Lenehan
therefore suggested that 'an expanded form of the observer provisions and an
absolute rule against the admission of evidence obtained by torture' should
also be included in the Foreign Evidence Act.[119]
3.85
The DPP acknowledged that, even with the observer
provisions in proposed Part 1AE of the Crimes Act, 'instances of torture or ill
treatment prior to the giving of evidence by video link may not necessarily be
revealed by the presence of the observer at the time of giving evidence.'[120] However, the DPP submitted that:
If the prosecution was in possession of any material that
suggested a witness had been tortured or ill treated it would be required to
disclose that material to the defence. If such material emerged either prior to
the court proceedings or during the course of the proceedings the evidence may
be ruled in admissible or unreliable. The video link provisions only relate to
the method of giving evidence not its ultimate admission or reliability and
issues relating to the treatment of witnesses and the conditions under which
they are held are often the subject of cross examination and defence counsel
can quite properly explore these issues.[121]
3.86
A representative of the DPP explained further during
the committee's hearing:
Not only does the prosecution have to disclose at a very early
stage the evidence upon which it intends to rely but also it has a positive
duty to disclose any other material of which it is aware that may have an
impact on the evidence it is going to introduce or on the witnesses it will
call. So any pieces of information that we have that might go to a person's
credibility or the way they have been treated and their background et cetera
that might have an impact on the reliability of their evidence are matters that
we have to disclose to the defence. We obviously take that very seriously and
it does pose some difficulties in this context.[122]
3.87
Similarly, a representative of the Department told the
committee that 'this is not an act about the admissibility of evidence; this is
an act about the process' and that:
Those protections come in under the normal rules, protections
and powers of the court under the Evidence Act and the normal ability to
control proceedings...if it appears that the evidence is not reliable, for
example, suppose the observer was to report to the judge that there was
somebody standing there with a gun pointed at the witness's head...You do not
then need a provision in here to say that that evidence is not admissible. It
would not be admitted through the exercise of the normal discretions and powers
of the court.[123]
Other integrity issues
3.88
ALHR also raised a number of matters which constrain a
court in assessing the credibility of a witness by video link. For example, one
difficulty mentioned by ALHR was in applying Australian laws on perjury or
contempt to a witness in another jurisdiction.[124] Mr
Beckett from ALHR elaborated on this in
response to the committee's questioning:
Because the person is sitting on the other side of the world,
there is difficulty in the court being able to immediately hold the person in
contempt and effectively threaten the witness with perjury...The weight of the
court, if you like, and the whole structure that goes with court proceedings is
absent.[125]
3.89
Mr Beckett
was of the opinion that the proposed tests in relation to video link evidence would
compound the problem:
...in any video link evidence if there is contempt or perjury you
are going to have those difficulties, but the issue is that where you have a
high hurdle, as we have in proposed section 15YV(1), if there is some issue
about credibility but it does not reach the height of that test, these are the
sorts of problems that are likely to arise. If it is more likely that there are
going to be lies told or contempt committed via the use of video link evidence,
and you have let it in, then you may have blown your opportunity to put
pressure on that witness through the use of contempt and perjury laws.[126]
3.90
Mr Beckett
observed that there may also be other difficulties in assessing the credibility
of the witness when using video link:
...if you want to see the demeanour if the witness in the witness
box, there is a difficulty when they are at the other end of a video link. If
they are sweating or fidgeting in the box, you can see the demeanour of the
witness, but there are difficulties in reading the demeanour of the witness during
video link evidence even though you might have a camera planted in their face.
And demeanour...is one of the key things upon which a judge might make a decision
about the credibility of a particular witness's evidence.[127]
3.91
However, a representative of the Department disagreed,
arguing that it is possible to assess the demeanour of a witness through video
link.[128] The representative again
observed that the courts would still have powers under the normal rules of
evidence to deal with admissibility and credibility issues:
...these provisions deal with the mode in which evidence is given.
They do not talk about or deal with the admissibility of evidence. All the
traditions rules of admissibility will apply; they will not be affected... This [Bill]
does not change the powers of the court in those situations.[129]
3.92
Similarly, a representative of the DPP again pointed
out that the Bill:
...deals with the method in which evidence is given. It really
does not go to many of the other issues that have been raised about
reliability, admissibility and credibility—all those sorts of things. They are
still issues that the court faces, whether this evidence is given overseas or
in person.[130]
Retrospective application
3.93
The new video link rules in Part 1AE of the Crimes Act will
apply to proceedings initiated before the commencement of Part 1AE.[131] Similarly, the amendments to the
Foreign Evidence Act would also apply to proceedings instituted before the
commencement of the amendments.[132]
3.94
The Parliamentary Library's Bills Digest concluded that
'therefore, these provisions would have a retrospective effect.'[133] In particular, the Bills Digest
observed that, if passed, the provisions may be in effect for the trial of Mr
Fadheem Lodhi,
which will apparently take place in February 2006. Committal hearings for this
trial involved video evidence, and were held between December 2004 and February
2005.[134]
3.95
ALHR was concerned at the retrospective effect of the
provisions relating to video link evidence:
Depending on the stage of the proceedings this may have an adverse
effect on the case especially where the prosecution has been unable to adduce
the evidence under the current provisions for video link evidence. The defence
may have committed itself to a particular course in the proceedings on the
assumption that this new evidence will not be called. For example, prosecution
witnesses may have been cross-examined on the understanding that no such
evidence would be called. Further, documentary evidence may have been let in by
the defence with its consent when such evidence would have been opposed if the
new evidence (by video link) was expected.[135]
3.96
ALHR concluded that if evidence is allowed after
proceedings have commenced, the defendant may be 'unfairly prejudiced by the
introduction of new evidence at this late stage of proceedings.'[136] Mr
Beckett of ALHR gave a number of examples of
this during the committee's hearing. He did, however, indicate that evidence
introduced early in the proceedings would not be problematic:
...the proceedings of the actual trial have commenced in the sense
that a charge has been laid and the brief of evidence has not been served on
the defence and the prosecution wants to lead this sort of video link evidence,
then I cannot see—at least prima facie—why there would be a problem with that.
In other words, it could be included as part of the police brief and then it is
dealt with on its merits during the trial.[137]
3.97
However, Mr Beckett
argued that it is important to provide some flexibility for the court so it can
weigh up the various advantages and disadvantages to both sides on that
specific issue.[138] ALHR therefore
suggested that any use of the new video link provisions in proceedings which
have already commenced should be by leave of the court.[139]
3.98
In response to the committee's questioning on this issue,
Mr Beckett acknowledged the court already has discretion under the Bill as to
whether to allow video link evidence, but argued that the different test
proposed by the Bill (as discussed earlier in this chapter) would make it
difficult for the defence in proceedings which have already commenced.[140] ALHR therefore proposed that, in
situations where proceedings have already commenced:
...the test to be applied by the court should be whether it is in
the interests of justice to have the new evidence adduced and the onus of doing
so should be with the applicant.[141]
3.99
However, in its submission, the DPP stated that the
provisions will 'operate prospectively in relation to these proceedings'.[142] Similarly, the committee notes that the
Attorney-General has argued that the Bill is not
retrospective and that:
...the provisions of this bill are procedural and they apply to
proceedings that are to take place after the provisions come into force, thus
they do not affect the substantive rights of either party.[143]
3.100
Mr Beckett
of ALHR responded to this argument as follows:
My concern is not so much whether it is substantive or
procedural; the issue is whether there is prejudice to the defence case. Having
gone down one particular road and perhaps prejudiced oneself, the defence then
has to roll itself back and may have to go down another road...there may be
substantive prejudice. In other words, the trial becomes unfair because the
defence has already committed itself to that road.[144]
3.101
Mr Lenehan
of HREOC supported ALHR's arguments in this regard:
...it is not necessarily objectionable in itself that this has
that retrospective effect on procedural issues; what is potentially
objectionable is that it could affect the fairness of existing trials.[145]
3.102
During the committee's hearing, a representative of the
DPP reiterated the position that 'this is procedural legislation and it does
not apply retrospectively.'[146] In
answers to questions on notice, the DPP noted that there are three counter
terrorism cases currently on foot in which it is proposed to call video link
evidence and where the proposed provisions could potentially be used, if the Bill
is passed.[147] The DPP also stated
that 'those cases are at different stages of advancement.'[148]
3.103
The representative also responded to the examples given
by ALHR where the prosecution may wish to call further evidence relying on this
legislation in a pre-existing proceeding:
The fact is that the prosecution is in a very difficult position
to try to introduce new evidence at a late stage in any event, wherever it
comes from. At the very least, depending on the nature of the evidence, there
would be adjournments to allow the defence to consider the evidence et cetera.
If it were important enough, it would have the probable effect of aborting the
trial; you would have to come back and do it again.[149]
3.104
The representative continued:
There is no issue of defence being taken by surprise. If it were
such that, for example, they thought they were prejudiced about the way they
had presented their case up until then, whether that evidence were allowed in
obviously would go to the discretion [of] the court. I think it is important to
see this legislation in the context of how the criminal prosecution process
works...[M]any of the things that have been referred to...are issues that courts
face on a daily basis in terms of the way they deal with witnesses.[150]
Other provisions of the Bill
Non-judicial functions and powers
3.105
In relation to the proposed amendments to section 4AAA
of the Crimes Act,[151] the Bills
Digest observed that 'it is not clear why the Commonwealth is seeking to widen
the non-judicial functions categories to the Federal level at this juncture.'[152] The Bills Digest also suggested that
'the proposed amendments may not withstand Constitutional challenge depending
on exactly what the judicial officer is required to do.'[153] However, a representative of the Department
expressed confidence that the provisions would survive any constitutional
challenge.[154]
3.106
The Gilbert and Tobin
Centre of Public Law felt that there is 'nothing objectionable' about the text
of these proposed amendments to section 4AAA. However, it was concerned about
the reasons given by the Explanatory Memorandum as to the need for the
amendments — that is, 'members of the Federal judiciary are increasingly being
conferred non-judicial powers in criminal matters under Commonwealth law'.[155] The Gilbert
and Tobin Centre of Public Law described this as a 'worrying trend' and
suggested that 'there are strong arguments for restraint in the allocation of
such duties upon judicial officers.'[156]
3.107
Dr Lynch
from the Gilbert and Tobin Centre of Public Law explained
further during the committee's hearing that:
There is no problem with what is being done in the bill as a
legal matter. But it is a trend, particularly so in relation to the terrorism
legislation that has been introduced, that Federal Court judges are being given
non-judicial roles, which I think presents the danger of an incompatibility
arising with their judicial function.[157]
3.108
The Gilbert and Tobin
Centre of Public Law further submitted that:
...even once amended, section 4AAA will not guarantee the validity
of each and every conferral. Ultimately, that must depend upon the specific
nature of the function conferred in each case. The amendments to section 4AAA
will not save a conferral if it is found to be simply incompatible with the
Judge's judicial role.[158]
3.109
A representative of the Department acknowledged this,
but pointed out that this would be a problem in relation to specific conferrals
of power, which are contained in other legislation, rather than the provisions
of the Bill.[159]
The representative further noted that the amendment was the result of 'a
request from the Federal Court to give greater certainty of protection to their
officers.'[160]
DNA matching
3.110
As outlined in Chapter 2, the Bill
also proposes to amend Part 1D of the Crimes Act to streamline the rules
governing the matching of DNA profiles. In relation to these amendments, the Parliamentary
Library's Bills Digest suggested that the committee 'may wish to seek briefings
from the relevant agencies to examine the full ramifications of these
amendments.'[161]
3.111
The Law Society of New South Wales submitted its
opposition to the amendments to remove the limitation on inter-jurisdictional
matching of DNA profiles to circumstances where there is a specific
identifiable investigation. The Law Society of New South Wales could not see
any justification for:
...why DNA that is provided for a specific purpose by a volunteer
should then be made available for investigations of any offence...DNA information
transmitted between the jurisdictions should only relate to the investigation
of specific matters.[162]
3.112
In response to the committee's questions on this issue,
a representative of the Department emphasised that:
...these provisions do not, and are not designed to, expand the
use that can be made of DNA evidence beyond what was intended in the
legislation.[163]
3.113
The representative explained that there have been two
major developments since the Commonwealth legislation relating to the national
criminal intelligence DNA database was enacted in 2001. First, states and
territories have enacted their own legislation. Second, the DNA database has actually
been developed and has become operational. The representative told the
committee that, as a result of these developments:
...we are discovering that there are areas where Commonwealth law
or state law do not quite match and where the law and the way the database
operates do not quite match. These provisions are designed to cut away a couple
of the problems...[164]
3.114
The representative commented that one of the problems relates
to the sharing of information between states and the Commonwealth. The
legislation's wording:
...has now turned out to be too restrictive because an
investigation on foot is required before you can share data. It just does not
work in the way in which it was intended.[165]
3.115
Another departmental representative explained in more
detail:
The way you read that is that each time the DNA profile goes up
onto the national criminal database there be a request to say we are
investigating this matter. We are changing it to say that they put it up on the
database and then it comes back saying there is a match and then we do the
request saying we need some further information about this particular match. We
have just separated the transmission out, but we are still saying it must only
be for the use of the investigation of the matter. That is still in the
legislation. We have not expanded the use.[166]
3.116
The representative further noted that the other
proposed amendment to the DNA provisions will deal only with volunteers
(limited purposes). The representative explained that:
Volunteers (limited purposes) is when a DNA sample is taken from
a volunteer for a purpose which is specified by the volunteer and can only be
used for that purpose.[167]
3.117
Another representative of the Department explained the
problem:
For example, the volunteers (limited purposes) cannot be matched
according to the matching table that currently exists in the legislation with
crime scenes. We are making an amendment to say that if the volunteer has given
their DNA for the purpose of matching it against crime scenes...or a specific
crime scene, it will allow the match. But under the current legislation we
would not be able to even though the volunteer had said that it is okay.[168]
3.118
Finally, the departmental representatives noted that
the DNA matching regime has a range of measures designed to protect privacy.
Further, they stated that consultation was undertaken with government privacy
experts and 'they were happy with the amendments in the current form.'[169] The representatives concluded that:
...we are satisfied that the system protects privacy and that it
gives effect to the way this legislation is drafted and the principles behind
it.[170]
The committee's view
3.119
The committee supports and acknowledges the aims and
need for the Bill, particularly in ensuring that
important evidence from overseas witnesses can be put before the court using
video link technology. Indeed, the committee is somewhat disappointed that the Bill
provides for a regime for video link evidence only in relation to 'designated
offences'. The committee encourages the government to consider the introduction
of a more comprehensive national legislative scheme for video link evidence.
3.120
However, the committee acknowledges the concerns raised
in relation to the differing tests proposed by the Bill,
depending on whether the prosecution or defence wishes to adduce video link or
foreign evidence. The committee also queries the wisdom of using different
wording in the amendments to the Crimes Act and the Foreign Evidence Act,
rather than making uniform provisions across both pieces of legislation.
3.121
The committee recognises that conflicting evidence was received
about whether the use of different tests (in proposed sections 15YV of the
Crimes Act, and 25A of the Foreign Evidence Act) would be advantageous to the
prosecution and prejudicial to the defendant. Nevertheless, the committee is
concerned that there was a distinct lack of support for the narrower prosecution
test in evidence received by the committee, other than from the Department and
the DPP. The committee is persuaded by concerns about the potential impact of
the provisions on the defendant's right to a fair trial, particularly when the
proposed provisions are used in conjunction with the National Security
Information Act. Further, the committee notes the evidence of the need to
maintain public confidence in the court system, especially in relation to the
trial of terrorist offences. The committee believes it is important to ensure
that persons convicted of such offences receive — and are seen to receive — a
fair trial, and that the Australian court system is not left open to criticism
in relation to such convictions.
3.122
The committee considers that the court should retain a
wide and flexible discretion in these matters. The committee therefore
recommends that the proposed sections 15YV of the Crimes Act and 25A of the
Foreign Evidence Act be amended to ensure that the same standard governs the
court's discretion to allow evidence via video link or foreign evidence,
regardless of which party makes the application. The committee considers that the appropriate
standard is whether allowing the evidence would be inconsistent with the
interests of justice. The committee further recommends that, in line with the
suggestion by HREOC, the court should be required to consider the circumstances
of the proceedings as a whole for the purposes of determining whether it will
be inconsistent with the interests of justice.[171]
Recommendation 1
3.123
The committee recommends that the proposed sections
15YV of the Crimes Act 1914 and 25A
of the Foreign Evidence Act 1994 be
amended to ensure that the same standard governs the court's discretion to
allow video link evidence or foreign evidence, regardless of which party makes
the application. The committee recommends that the appropriate standard is
whether allowing video link or foreign evidence would be inconsistent with the
interests of justice.
Recommendation 2
3.124
The committee recommends that, for the purposes of
determining whether it will be inconsistent with the interests of justice to
allow video link or foreign evidence under proposed sections 15YV of the Crimes Act 1914 and 25A of the Foreign Evidence Act 1994, the court
should be required to consider the circumstances of the proceedings as a whole.
3.125
In relation to the provisions for the appointment of
observers in proposed section 15YW of the Crimes Act, the committee supports
this provision and considers that it is important for the court to retain a
discretion in relation to the appointment of observers. The committee notes
concerns about whether observers would be truly independent, but considers that
the court has sufficient discretion in this matter under the proposed provisions.
However, the committee recognises concerns that proposed section 15YW has the
potential to unnecessarily limit the observer's role. The committee therefore recommends
that proposed subsection 15YW(7) be amended to expressly authorise the court to
request an observer to report on a wider range of circumstances relating to a
witness's evidence, not just the giving of video link evidence.
Recommendation 3
3.126
The committee recommends that proposed subsection 15YW(7)
of the Crimes Act 1914 be amended to allow
the court to request an observer to report on a wider range of circumstances
relating to the witness's evidence, not just in relation to the giving of video
link evidence.
3.127
The committee also notes concerns about the lack of
observer provisions in the Foreign Evidence Act, but is unclear how such a
provision might work in practice. However, the committee suggests that the
government consider including a provision in the Foreign Evidence Act to allow
for the appointment of an independent observer.
3.128
In relation to situations where video link or foreign
evidence may be tainted by torture or inhuman treatment, the committee is
satisfied that the court would still have the discretion to rule such evidence
as admissible or unreliable under the normal rules of evidence.
3.129
The committee notes concerns about the potential
retrospective application of the video link and foreign evidence provisions.
However, the committee accepts that any retrospective application will be
limited to proceedings that have already commenced, and that the impact will be
procedural only. The committee is of the view that any impact on these existing
proceedings is a matter best left to the court in its discretion in deciding whether
to allow video link or foreign evidence to be adduced.
3.130
Finally, the committee received little evidence on other
aspects of the Bill outside the video link and
foreign evidence provisions, but considers that the other provisions are
appropriate and any concerns raised are not sufficient to prevent passage of
the Bill.
Recommendation 4
3.131
Subject to the preceding recommendation, the committee
recommends that the Senate pass the Bill.
Senator Nigel Scullion
Acting Chair
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