Senate Legal and Constitutional Legislation Committee inquiry into the Law and Justice Legislation Amendment (Video Evidence and Other Measures) Bill 2005
Submission of the Human Rights and Equal Opportunity Commission
17 October 2005
The Human Rights and Equal Opportunity Commission (‘the Commission’) has been invited by the Senate Legal and Constitutional Legislation Committee (‘the Committee’) to make submissions on the Law and Justice Legislation Amendment (Video Evidence and Other Measures) Bill 2005 (‘the Bill’). The Commission welcomes the opportunity to make this submission and thanks the Committee for its invitation.
- The Commission is primarily concerned with the amendments made by the Bill to:
- the Crimes Act 1914 (Cth) (Crimes Act) in relation to video link evidence; and
- the Foreign Evidence Act 1994 (Cth) (FEA).
Outline of relevant amendments to the Crimes Act
- the prosecution or the defendant has made an application for a direction or order that a witness give evidence by video link;
- the prosecutor and defendant has given the court reasonable notice of their intention to make the application;
- the witness is available to give evidence by video link;
- certain specified video facilities are available or reasonably capable of being made available; and
- the proposed witness is not be a defendant in the proceeding
For the purposes of this submission, these five matters are referred to as the Common Conditions.
- in the case of an application made by the prosecution, the defendant positively satisfies the Court that the making of the order or direction would have a substantial adverse impact upon the right of defendant to a fair hearing;6 or
- in the case of an application made by the defendant, the prosecution positively satisfies the Court that the making of the order or direction would be inconsistent with the interests of justice.7
Concerns were raised in the second reading debate that the use of these different tests favours the prosecution over the defence.8 The Commission has sought to describe and compare the two tests in the next section of this submission.
The two tests
Interests of justice
In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so. (emphasis added)
Of course, unlike the Bill the onus in the test in the NSW Act is upon the party seeking to adduce evidence by video. It is also noteworthy that the NSW Act provides (as a cumulative safeguard) that the ‘court must not make [a direction that evidence be given] if...the court is satisfied that the direction would be unfair to the party’.
The phrase, “in the interests of the administration of justice” is a broad one and not susceptible to precise definition. The particular context of the use of the phrase will provide assistance as to its content. In the subject context it must include the impact on the parties and the trial of making or not making the direction. This involves assessing the impact on the fairness of the trial for the accused. It also involves the issue of the fairness to the witnesses and to the Crown. There may be many things which can be said to be relevant to the interests in the administration of justice. Some will be interests of the accused, some of a witness, some of the Crown and some of the general community or the public interest in a fair and efficient system of criminal justice. However, what appears to be required is a balancing of these interests.9
Relevant ‘interests of witnesses’ in the context of the NSW Act have included matters such as health concerns or fears of reprisal.10
Substantial adverse effect
The word ‘substantial’is imprecise and ambiguous. Its meaning must be taken from its context. It can mean considerable or big... It can also mean not merely nominal, ephemeral or minimal...
Making a direction that the evidence of an accusing witness be received by audiovisual link external to the courtroom must, by its very nature, involve unfairness to an accused because it deprives him or her of a face-to-face confrontation with the witness. The provision cannot mean any unfairness, however small. The Court must consider the degree and effect of the unfairness. In a criminal trial, the best measure is whether the making of a direction will cause the trial to be an unfair one to the accused. An accused person has the fundamental right to a fair trial. A direction should not be made if it would mean that an accused could not have a fair trial.18
Summary of differences between the two tests
- The ‘substantial adverse effect’ test, which applies if the defence seeks to oppose a prosecution application to adduce video evidence, will not be satisfied by the defence demonstrating some degree of disadvantage to the accused – any disadvantage must be of a sufficient degree to affect the fairness of the hearing itself.
- The ‘substantial adverse effect’ test contemplates at least some adverse effects on the defendant’s right to a fair hearing. Indeed, in the absence of a more narrow definition, it would be open to a Court to find that it contemplates adverse effects which are ‘considerable or big’.
- In contrast, the ‘interests of justice test’, which
applies if the prosecution seeks to oppose a defence application
to adduce video evidence is a more flexible test, which does not
specify, as an enlivening condition, any particular level of disadvantage
to the prosecution.
…the interests of justice test for the defendant applications… will give the court the capacity to protect the interests of the defendant. It will also allow the interests of the prosecution to be taken into account. The test for the prosecution applications is more narrowly focused on protecting the defendant’s interests, as in that situation there is no need for the court to second-guess what is in the interests of the prosecution.19
- If an accused person seeks a direction or order for the giving of video evidence and satisfies the Common Conditions, their application may be opposed by the prosecution on the basis of a broad range of considerations. These will extend beyond the interests of the defence and the prosecution. Rather the interests of justice test would appear to allow consideration of matters such as the expense occasioned by the making of the direction or order, the effect it would have on the length of the trial, the interests of the general community and the interests of the proposed witness.
- In contrast, the only relevant consideration
where the prosecution makes such an application (and satisfies the
Common Conditions) is the effect on the right of the accused to a
fair hearing. The defence may not seek to rely upon any of the wider
grounds referred to in (a).
Relevant Human Rights principles
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…
(3) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: …
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
Subparagraph 3 (e) states that the accused shall be entitled to examine or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. This provision is designed to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution. 21
In other words, article 14(3)(e) is not concerned with the right to call and examine witnesses per se; it is rather concerned with the equality of rights to call and examine witnesses as between the defence and the prosecution.22
Application to the Bill and recommended amendment of s15YV
- where it becomes apparent from close observation of a witness that their ability to perceive a particular event may be in doubt; or
- where the credibility of a particular witness is central to the
outcome of a matter, elevating the importance of the opportunity to
observe their demeanour in person.
- In a proceeding, the court must:
- direct; or
- by order, allow; a witness to give evidence by video link if:
- the prosecutor or defendant in the proceeding applies for the direction or order; and
- the court is satisfied that the prosecutor or defendant in the proceeding gave the court reasonable notice of his or her intention to make the application; and
- the witness is not a defendant in the proceeding; and
- the witness is available, or will reasonably be available, to give evidence by video link; and
- the facilities required by section 15YY are available or can reasonably be made available;
- For the purposes of this section, it will be inconsistent with the interests of justice for evidence to be given by video link if the giving of the direction or the making of the order would, having regard to the circumstances of the proceedings as a whole, violate the right of the accused to a fair hearing.
unless the court is satisfied that it would be inconsistent with the interests of justice for the evidence to be given by video link.
Evidence obtained through the use of torture
It is important for the discouragement of violations under article 7 that the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.30
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
Amendments to the Foreign Evidence Act 1994 (Cth)
- (1) 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.
- (2) Without limiting the matters that the court may take into account in deciding whether to give such a direction, it must take into account:
- (a) the extent to which the foreign material provides evidence that would not otherwise be available; and
- (b) the probative value of the foreign material with respect to any issue that is likely to be determined in the proceeding; and
- (c) the extent to which statements contained in the foreign material could, at the time they were made, be challenged by questioning the persons who made them; and
- (d) whether exclusion of the foreign material would cause undue expense or delay; and
- (e) whether
exclusion of the foreign material would unfairly prejudice any party
to the proceeding.
- the proceedings involve the terrorism offences referred to above or proceeds of crime proceedings related to those terrorism offences; and
- the prosecution is seeking to adduce the foreign material.
Instead, the following discretion will apply:
the court may direct that the foreign material not be adduced as evidence in the proceeding 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 (see proposed s25A).
- Amendments to proposed s 15YV of the Crimes Act and s5A of the FEA so as to apply the same tests to applications made by the prosecution and defence. That approach is more consistent with the principle of equality of arms;
- The expansion of the ‘observer’ provisions in proposed s15YW of the Crimes Act and the addition of similar provisions to the FEA; and
- An absolute prohibition on the use of evidence obtained by torture or other cruel or inhumane treatment.
- See proposed s15YU(1) of the Bill which specifies the following offences: 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 inter-alia development 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.
- See proposed s15YU(2).
- See, for example, Evidence (Audio and Audio Visual Links) Act 1998 (NSW); Evidence Act 1958 (Vic), Part IIA; Evidence Act 1906 (WA), s 121; Evidence (Audio and Audio Visual Links) Act 1999 (Tas).
- See proposed s15YZF.
- See page 3 of the Explanatory Memorandum.
- See proposed s15YV(1).
- See proposed s15YV(2).
- See Commonwealth, Parliamentary Debates, House of Representatives, 13 October 2005, pp 17-19 (The Hon Nicola Roxon MP) and pp 22-25 (The Hon Daryl Melham MP).
-  NSWCCA 82 at . The defendant was refused special leave to appeal the decision of the Court of Criminal Appeal to the High Court:  HCATrans 185.
- See Ngo and Rv Yates, Parry, Hyland, Powick  NSWCCA 520 at .
- BHP Billiton Limited v Schultz  HCA 61 at .
- (1982) 62 FLR 437 at 444. See also Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union(1979) 42 FLR 331.
- See at p11.
- See Harris v Australian Broadcasting Commission (1983) 5 ALD 545 at 556-7 and Re Healy and Australian National University (unreported 23 May 1985).
- Re Dyki and Commissioner of Taxation 12 AAR 544 at 549.
- Marco Ascic v Australian Federal Police (1986) 11 ALN N184 per Muirhead J.
- See s 7.
-  NSWCCA 82 at .
- Second Reading Speech, Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill (Cth) 2005, Parliamentary Debates, House of Representatives, 13 October 2005, p 26 (Philip Ruddock MP, Commonwealth Attorney-General).
- Weissbrodt D, The Right to a Fair Trial: Articles 8, 10 and 11 of the Universal Declaration of Human Rights (Kluwer Law International, The Hague, The Netherlands: 2001) at 125.
- Human Rights Committee, General Comment No. 13: Equality before the courts and the right to a fair and public hearing by an independent court established by law (Art. 14): 3/04/84.
- See S Joseph, J Schultz and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd Ed, Oxford University Press), pp 446-47.
-  UKHL 4.
- Article 6(3)(d) which provides:
- See Baroness Hale at . See also Lord Brown at .
- See Part 3, Divisions 2 and 3 of the Act.
- See s 31(7).
- See the example given on p 6 of the
Bills Digest. See also generally A & Ors v Secretary of State for the Home
Department  EWCA Civ 1123 in which the UK Court of Appeal (Civil
Division) was asked to advise as to whether evidence obtained from a third
party(not a defendant/respondent) in contravention of article
3 of the ECHR (which is in the same terms as article 7 of the ICCPR) by officials
of a third country could be relied upon by the Secretary of State for the Home
Department in court proceedings.
Lord Justice Pill opined that, while the English common law would not necessarily operate to render evidence obtained in contravention of article 3 inadmissible, reliance on evidence by the Secretary of State for the Home Department may in some circumstances amount to an abuse of state power. Such evidence would be therefore rendered inadmissible under the 'abuse of process jurisdiction' of the court: -. However, this was not such a case: .
Lord Justice Laws considered that under the common law, issues about the means by which such evidence was obtained go to weight and not the admissibility of evidence, unless the evidence in contravention of article 3 had been obtained by the UK (or its servants acting at its behest). In the latter case the evidence would be inadmissible, the Secretary of State not being entitled to rely upon its abuse of power: -). His Lordship considered the position under common law as being consistent with the UK's obligations under article 6 of the ECHR (which is similar in its terms to article 14(3)(e) of the ICCPR): .
Lord Justice Neuberger considered that the evidence would be admissible under the English common law, unless the torture was carried out by or on behalf of the contrivance of the UK government (). However, as a matter of practice, such evidence is not likely to be accorded any weight by a court (). His Lordship suggested that the evidence may also be able to be excluded under the common law on the basis that its prejudicial effect would outweigh its probative value, though no such argument was put before the court: , . His Lordship further considered that, while 'there was a formidable argument' that the common law should exclude statements obtained by torture if it could be shown that there there was an 'ordinary' customary rule in international law to that effect, such a finding was impossible, no such argument having been developed before the court: -. In relation to article 6 of the ECHR, his Lordship considered that 'I do not think that a [person] can be said to have had a fair trial within ECHR Article 6(1), if evidence obtained by torture is used against him': . Consequently, his Lordship considered that the Human Rights Act 1988 ( UK) would require the inadmissibility of all statements made under torture: .
Note that this case is currently on appeal to the House of Lords.
- Which provides ‘[n]o-one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’.
- Human Rights Committee, General Comment 20: Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment (Art. 7) : 10/03/92, ¶12.
- Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984,  ATS 21 (entered into force for Australia 7 September 1989).
- Convention Against Torture Communication No 193/2001, UN Doc CAT/C/29/D/193/2001.
- See, for example, s138 of the Evidence Act1995 (NSW).
- Bunning v Cross (1978) 141 CLR 54.
- See proposed s15YW(1).
- See proposed s15YW(7).
- See proposed s15YW(4).
- See proposed s15YW(5).
- See s23 FEA.
- Explanatory Memorandum, Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 (Cth), 12.
Everyone charged with a criminal offence has the following minimum rights: …
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;