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Thursday, 24 March 1994
Page: 2312

Senator ELLISON (9.43 p.m.) —I can perhaps give the Senate an outline of what happened in relation to this matter. It might be of assistance to trace the history of it. When this matter was last in the chamber, a problem came to light in relation to clause 25. That clause deals with the matters that a court might take into account—whether to give a direction that foreign material not be adduced as evidence. At the time I made the point that prejudice to the defence in a criminal trial would be a germane point to bear in mind because, in clauses 25(2)(a), (b), (c) and (d), we have matters of expense, delay, the probative value and the availability of evidence.

  What I thought at the time was that the question of prejudice should really be canvassed because, whenever one is looking at the admission of evidence, a question of unfair prejudice is always relevant. I note that the amendment was made on the basis that it caused prejudice to the defence, and the prosecution of course was left out. On reading the Hansard I note that in my address on this matter I did touch on the fact that both parties should be looked at with an even hand. Therefore, I have no problem with looking at prejudice to either party; that is quite fair. In fact, if one looks at the adjournment of a trial, both prosecution and defence are looked at in the same light—whether the adjournment would cause any unfair prejudice. Similarly, in this case, that should be looked at as well.

  What was omitted was looking at it in the civil jurisdiction, which I believe is covered by part 4 and of course relates to clause 33. I think it only appropriate that, when we look at the criminal jurisdiction, we should also have consideration of the civil jurisdiction. I enforce fully the changes that have been made, but it was whilst considering these changes that it came to light that we are talking only about the exclusion of foreign material. If there were a trial in Australia and the defence or the prosecution raised the point that they had some foreign material that they wanted to adduce as evidence, the court would look to the fact of whether excluding it would cause unfair prejudice to either party.

  What was really not canvassed there was the question of the admission of the evidence. I think that that is a crucial point because one has to look at evidence in the light of either admitting it or excluding it. Sometimes, by excluding evidence, courts can potentially rob people of their case. On the other hand, by admitting the evidence courts can sometimes cause unfair prejudice to either side. So, really, the question of admission and exclusion have to go hand in hand. Clause 24 subclause (2) states:

The foreign material is not to be adduced as evidence if:

(a) it appears to the court's satisfaction at the hearing of the proceeding that the person who gave the testimony concerned is in Australia and is able to attend the hearing; or

(b) the evidence would not have been admissible had it been adduced from the person at the hearing.

This implies the common law doctrine that, when looking at the admission of evidence, the probative value should be weighed against the prejudicial value of the evidence. But I think it most important that bundled in clause 25(2)(e) is the question of admission and exclusion because it really does spell out, as it were, what the court has to take into account.

  I am not so certain that clause 24 subclause (2)(b) incorporates that common law doctrine which I have mentioned—that is, whether evidence should be admitted on the basis of its probative versus prejudicial value. The courts, when they come to a situation such as this where specific criteria are spelt out, will look at the criteria and say that this is what they should be guided by, particularly taking into account clause 25 subclause (2), which states:

Without limiting the matters that the court may take into account in deciding whether to give such a direction, it must take into account:—

and it then goes on to list the specific criteria. That is why I think it is so important in the specifics to spell out in the subclause the question of the prejudice occasioned by exclusion of evidence or admission of evidence.

  On the last occasion we had a debate—more like discussion—on clause 25 a flaw came to light. We have had further time to consider it. This amendment, as put forward by the government—and, furthermore, as proposed to be amended by the coalition—is an amendment which perhaps more adequately encompasses and caters for any possible difficulties. I think the situation now, if one takes admission and exclusion into account, would indeed be satisfactory to both sides. Even the prosecution could say, `If you let the defence bring in this evidence, we do not have a chance to rebut it. It places us in an impossible position'. That too is a factor which must be considered. There must be even-handedness with respect to both prosecution and defence and also in the civil jurisdiction with plaintiff and defendant. I think it could work to great advantage.

  This bill is a very good bill because it provides for and streamlines the taking of foreign material and use of it as evidence. But the danger that we have—we must jealously guard against increasing this danger—is that where a party has evidence from outside the jurisdiction, particular care must be taken that when that party introduces it the other party has a chance to have a say as to whether it will be excluded or omitted and, furthermore, has a chance to gainsay it.

  One of the rules of natural justice is that a party can bring in evidence on a matter and the other party must have an opportunity to argue against it. If a testimonial or deposition is taken from someone overseas and the other party does not have an opportunity to quiz that person, that party might say, pursuant to this amendment, `The inclusion is unfairly prejudicial because I have not had a chance to check this out. I have not had a chance to cross-examine. I have not had a chance or the resources to expand on the evidence'.

  I remember that in one case I dealt with, a deposition was introduced into proceedings by a man who had fled the country and gone to live in America—and he would not return to give evidence for the defence. The document was introduced and the defence did not have a chance to cross-examine on the document. What was more important was the defence wanted to take further evidence from the person in America. The defence said, `This document does not present the whole picture. There was more to it than that'. That is where this bill will be helpful because it will allow foreign material to be used as evidence.

  What we must remember is not to throw the baby out with the bath water. We must be extremely careful how we introduce that foreign material as evidence and must guard against any possible unfair prejudice. That applies to prosecution or defence, plaintiff or defendant.

  The coalition's proposition is a sound one. I do not think it is one which will cause the administration of justice any great delay or expense. In fact, when one places it on the scale, an amendment of that sort would only guard against any injustice; with a minimal amount of expense or delay.