Submission: Video Evidence

Legal

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).

The Commission shares the concerns expressed during the second reading
debate that those amendments favour the prosecution over the defence
in terrorism trials. This potentially violates article 14 of the International
Covenant on Civil and Political Rights, which provides for the right
to a fair hearing.

Outline of relevant amendments to the Crimes Act

Item 5 of the Bill adds part 1AE to the Crimes Act. Part 1AE sets
up a new regime for the taking of video evidence in certain specified
proceedings. The proceedings to which the new part applies are:
- criminal proceedings for federal terrorism offences and related
  offences;1 and
- proceedings under the Proceeds of Crime Act 2002 (Cth)
  in relation to one of those offences.2

State and territory legislation already provides for the taking of
evidence by video link, including remote evidence from overseas witnesses.3 The
Bill does not purport to exclude or limit those provisions.4 The
party seeking to adduce the particular evidence will therefore have
a choice as to which regime they seek to use.

The Bill will apply to witnesses giving evidence within Australia
as well as those testifying from a foreign state.5

Proposed s15YV provides for the making of an order for the taking
of video evidence. As with other recent procedural legislation in this
area, a ‘directive approach’ has been taken - the discretion
of the Court has been deliberately limited. This is achieved by providing
that the Court ‘must’ (rather than ‘may’) direct
or order that evidence be given by video link upon being satisfied
of certain matters.

The matters of which the Court must be satisfied before making a
direction or order are that:
- 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.
Once the Common Conditions are made out, the Court must order
that the witness be allowed give evidence by video link, unless:
- 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

The “interests of justice” test reflects
some of the existing State and Territory provisions concerning evidence
by video link. For example, s5B(3) of the Evidence (Audio and Audio
Visual Links) Act1998 (NSW) states:

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 New South Wales Court of Criminal Appeal has made
the following comments about s5B(3) in R v Ngo (Ngo)
:

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

In a different context, the High Court has similarly suggested that
matters beyond the interests of the parties and matters such as ‘cost
and efficiency’ will be relevant when considering the interests
of justice.11

Substantial adverse effect

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.

In Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd 12 (2UE)
Lockhart J made the following comments in the context of the Trade
Practices Act 1974 (Cth):

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...
As is noted in the Bills Digest, the term ‘substantial adverse
effect’ appears in the Freedom of Information Act 1982 (Cth)
(FOI Act).13 What may not be entirely
clear from the Digest is that, in the context of that Act, the Federal
Court and Administrative Appeals Tribunal have construed ‘substantially’ in both the
senses discussed by Lockhart J in 2UE.

In some FOI Act decisions, it has been held that the ‘effect’ to
be shown must involve a degree of gravity that is serious or significant.14 That
line of authority further suggests that the onus of establishing the
requisite effect is a heavy one (albeit not an impossible obstacle).15 In
other decisions, it has been said that one is considering whether the
effect is real or of substance and not insubstantial or nominal.16

The term ‘substantial adverse effect’ also appears in
the National Security Information (Criminal and Civil Proceedings)
Act 2004 (National Security Information Act) . However, as compared
to the Bill, that Act defines the term to mean ‘an effect that
is adverse and not insubstantial, insignificant or trivial’.17 It
is unclear why the Bill does not include a similar provision.

Regardless of how ‘substantial’ is ultimately construed
(if proposed s15YV passes in its present form), it is important to
recognise that the Bill contemplates that the defendant will be subjected
to a degree of disadvantage which exceeds that 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, something which has been considered fundamental
in the Australian criminal justice system. As the following passage
from Ngo indicates, this involves a significant step away
from the safeguards which have until now been placed upon the use of
video link evidence:

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

It will be apparent from the above that there is considerable uncertainty
regarding the manner in which the two tests in proposed s15YV would
be applied (were the Bill to pass in its current form). However, the
following points are tolerably clear:

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.

During the second reading debates, the Commonwealth Attorney-General
emphasised the fact that the ‘interests of justice test’ will
require any unfairness to the prosecution to be balanced against the
interests of the defendant in adducing video link evidence:

…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
However, with respect, the position is somewhat more complex than
is there suggested for the following reasons:

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).

Having regard to these matters,
the Commission considers that it is likely that the prosecution will
be favoured by the use of different tests in s15YV. That is, it is the
Commission’s view that it will be more difficult for a defendant
to successfully challenge a direction or order sought by the prosecution
and easier for the prosecution to successfully challenge a direction
or order sought by the defendant.

Relevant Human Rights principles

The right to a fair and public
hearing is provided for in article 14(1) of the ICCPR which states (in
part):

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…
The right to a fair hearing
under Article 14(1) is not limited to criminal matters. Rather, it guarantees
certain rights to parties in "suits at law". Those rights include,
for example, ‘equality of arms, the respect of adversarial proceedings… and
the swiftness of the procedure at all stages’.20

Paragraphs (2) to (7) of Article
14 set out a series of more specific guarantees for criminal trials and
appeals. They relevantly include the following right:

(3) In
the determination of any criminal charge against him, everyone shall
be entitled to the following minimum guarantees, in full equality: …
The Human Rights Committee
has discussed that requirement in General Comment 13, where it was said:

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

The Human Rights Committee
is yet to consider whether the use of video evidence in criminal matters
is compatible with the guarantees under articles 14(1) and (3)(e) of
the ICCPR. However, the House of Lords considered that issue in Regina v
Camberwell Green Youth Court; ex parte D23 where
the comparable provision of the European Convention on Human Rights24 was
in issue. The legislation in question in that case created a special
video evidence regime for child witnesses. It was subject to an ‘interests
of justice’ exception, which (unlike the Bill) applied equally
to witnesses for the prosecution and defence. Their Lordships held that
the use of video-link evidence did not, in itself, violate those guarantees.
Nevertheless, their Lordships did appear to accept that the right to
a fair hearing might be violated by the use of such evidence in particular
circumstances. For example, an assault charge in which the defence was
self defence, where it might be important for defence counsel to see
the witness in person and gain an impression of how threatening she or
he could be, especially when angry.25

Application to the Bill and recommended amendment of s15YV

Consistent with the view expressed
by the House of Lords, the Commission considers that the use of video
evidence does not, in itself, raise issues under article 14.

However, the use of such evidence
in the circumstances of a particular case may give rise to such issues
(the example given in Camberwell being one such instance).
It is possible to envisage other matters where close physical observation
of a witness will be crucial. For, example:

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 those circumstances, 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’.

The Bill is also objectionable for the imbalance it creates between
the ability of the prosecution and defence to call video evidence.
For the reasons outlined above, the Commission is of the view that
the current provisions of s15YV favour the prosecution. This violates
the principle of ‘equality of arms’, which is fundamental
to articles 14(1) and (3)(e).

These deficiencies could be remedied by replacing s15YV with the
following section:

In a proceeding, the court must:

direct; or
by order, allow;

a witness to give evidence by video link if:

both:

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;

unless the court is satisfied that it would be inconsistent with the
interests of justice for the evidence to be given by video link.

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.

The Commission’s suggested use of the interests of justice
test contemplates a certain degree of permissible unfairness to the
accused (see passage from Ngo above). However, it is implicit
in that test (and made clear in the Commission’s suggested 15YV(2))
that such unfairness should not place Australia in breach of its obligations
under article 14(1) of the ICCPR.

The suggestion that s15YV(2) include the words ‘ having regard
to the circumstances of the proceedings as a whole’ is intended
to clarify that the making of the order is not to be considered in
isolation. The Court should rather be required to consider whether
the making of an order could operate in combination with other factors
to create an unfair hearing.

A possible example of an order creating unfairness in combination
with other factors might arise where orders are made under the Bill
and the National Security Information Act. As this Committee would
be aware, the National Security Information Act has altered some of
the usual rules of criminal procedure in matters to which the Bill
applies. It provides for a regime to protect security sensitive information,
including through non-disclosure orders and orders allowing the use
of redacted evidence.26 As noted
above, the operative provisions of the National Security Information
Act also require consideration of 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.27 Were
the Bill to become law, it is possible that it would be the cumulative
effect of orders made under the two sets of provisions (rather
than the orders in isolation) which gave rise to an unfair hearing.

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.

The Commission considers it is preferable that the Court be specifically
directed in s15YV(2) to take those possibilities into account in deciding
whether to permit the use of video evidence by the prosecution. This
Committee may also feel that it is appropriate to consider recommending
an amendment to the National Security Information Act.

Evidence obtained through the use of torture

It is notorious that some states have tortured people who have been
detained in connection with actual or suspected terrorist activities.28 That
is of concern in the context of the Bill, given that the Bill provides
for the witness to be giving evidence at locations outside the control
of any Australian government.

Australia has an obligation under article 7 of the ICCPR29 to
proscribe the use of evidence obtained through torture or cruel, inhuman
or degrading treatment or punishment. The Human Rights Committee has
described that obligation in the following terms:

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
The Convention Against Torture (CAT)31 includes
a similar obligation. Article 15 provides:

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.
In PE v France,32 the
Committee Against Torture held that article 15 obliged a state to ‘ascertain
whether or not statements constituting part of the evidence of a procedure
for which it is competent have been made as a result of torture.’ The
Committee also indicated that this obligation applies to evidence obtained
from witnesses in other states.

There are differences between Australian jurisdictions in relation
to evidence obtained through torture in criminal matters. In the Uniform
Evidence Law jurisdictions (the federal courts, the Australian Capital
Territory, New South Wales and Tasmania) there is a general exclusionary
provision for evidence which is obtained ‘improperly or in contravention
of Australian law’. Such evidence, which would include evidence
obtained by torture or other cruel or inhuman treatment as well as
evidence obtained through a wide range of lesser improprieties, is
to be excluded unless the prosecution can establish the desirability
of admitting the evidence outweighed the undesirability of admitting
evidence that has been obtained in the way in which the evidence was
obtained.33 In jurisdictions where
the common law remains, the defendant bears the onus of proving that
the evidence has been improperly obtained through such methods and that
the balancing test requires the exclusion of that evidence.34

One would expect that evidence obtained through torture and similar
means would, as a practical matter, be excluded under either test.
However, 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. The general common law and statutory discretions would continue
to apply to evidence obtained via lesser forms of impropriety. In the
Commission’s view, this will more clearly satisfy Australia’s
obligations under article 7 of the ICCPR and article 15 of CAT.

However, there remains the problem of how the parties and the Court
can determine whether any such treatment has taken place where the
witness is located outside Australia.

The Bill attempts to deal with that issue through the use of ‘observers’.
The court is to have the discretion (under proposed s15YW) to make
the giving of video evidence conditional on a specified observer being
physically present at the place where evidence is to be given.35 The
observer can be directed to give the court a report on what they observed
in relation to the giving of evidence by the witness. That report can
then be used by the Court in determining admissibility.36 The
specified observer can be an Australian diplomat or consular officer,
or any other person.37 The court
must not specify a person as an observer unless the Court is satisfied
that the person is independent of the parties, in a position to give
a report to the Court about what they observe in relation to the giving
of evidence, reasonably available to observe the giving of evidence
and appropriate.38 It is specifically
provided that the ‘mere fact’ that the person is an Australian
diplomat or consular officer does not mean that they are not independent
of the prosecutor.

The Commission has a number of concerns regarding these provisions.
First, 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. It would also
be preferable if the defence was able to insist upon the use of an
observer, at least in certain circumstances.

More fundamentally, the observer 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). As was held in PE v France, 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.

The Commission recognises that these matters will frequently involve
sensitivity on the part of other states where evidence is being taken.
The Commission also recognises that it may not always be possible to
obtain the broader information which the Commission suggests should
be sought. However, in those circumstances, the Commission is of the
view the evidence should not be received. Australia is otherwise putting
itself in a position where it cannot meet its obligations under article
7 of the ICCPR and article 15 of CAT.

**Amendments to the Foreign Evidence Act 1994 (Cth)**

The Bill amends the FEAso as to impose a bifurcated
test similar to that proposed for video-link evidence.

The FEA provides for an ‘evidence on commission’ procedure,
under which the Attorney-General can request a foreign state to take
testimony (defined as ‘foreign material’) for use in an
Australian Court.

Such evidence can take the form of video or audio recordings or transcript.39

Section 25 of the FEA provides:

(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.

Under the Bill, it is proposed that the Court will not be able to
make a direction under s25(1) where:

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).

Section 25(1) is to continue to apply to if the defendant is seeking
to adduce foreign material in such proceedings.

The Explanatory Memorandum suggests that the above amendments will
apply where it is not possible for evidence to be given by video link.40

The Commission considers the concerns expressed above in relation
to the video link provisions apply equally to the proposed amendments
to the FEA. Indeed, the disparity between the two tests is highlighted
by s25(2) of the FEA, which suggests that a wide range of matters beyond
fairness may be invoked by the prosecution to resist a defendant’s
attempt to adduce foreign material.

Should there be a desire to narrow the Court’s discretion
in this area, then it might best be achieved by providing for a narrower
set of exhaustive considerations which apply equally to both parties.
Any amended provision should also clearly state that the right of the
accused to a fair hearing should not be violated (in a similar form to
the Commission’s suggested version of s15YV(2)).

The amendments to the FEA also raise the issue of obtaining evidence
via torture. However, unlike the amendments to the Crimes Act, there
has been no attempt to provide for that possibility through the mechanism
of an observer. For the reasons outlined above, the Court should be able
to impose such conditions on the receipt of evidence under the FEA. 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.

Conclusion

The Commission is concerned that the amendments made by the Bill
to the Crimes Act and FEA favour the prosecution over the defence in
terrorism trials. This potentially violates article 14 of the International
Covenant on Civil and Political Rights, which provides for the right
to a fair hearing. The Commission is also concerned that the Bill does
not provide sufficient safeguards to prevent Australian Courts do not
admit evidence obtained through torture. To address those concerns, the
Commission has recommended:

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.

ENDNOTES

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).
[2003] NSWCCA 82 at [124]. The
defendant was refused special leave to appeal the decision of the Court
of Criminal Appeal to the High Court: [2004] HCATrans 185.
See Ngo and Rv
Yates, Parry, Hyland, Powick [2002] NSWCCA 520 at [220].
BHP Billiton Limited v Schultz [2004]
HCA 61 at [15].
(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.
[2003] NSWCCA 82 at [108].
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.
[2005] UKHL 4.
Article 6(3)(d) which provides:

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;

See Baroness Hale at
[46]. See also Lord Brown at [68].
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 [2004] 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: [128]-[137]. However, this was not such a case: [138].

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: [249]-[250]). 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):
[263].

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 ([424]). However, as a matter of practice,
such evidence is not likely to be accorded any weight by a court ([425]). 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: [426], [429].
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: [436]-[437]. 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': [467]. Consequently, his Lordship considered
that the Human Rights Act 1988 ( UK) would require the inadmissibility of all
statements made under torture: [473].

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, [1989] 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.

Human Rights and Equal Opportunity Commission Website: Legal Information
Last
updated 21 October 2005.

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