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Thursday, 9 March 1972
Page: 626

Senator GREENWOOD (Victoria) (Attorney-General) - I must say that I feel that bo'h Senator Murphy and Senator James McClelland are adopting an unnecessarily cautious approach to the applicability of Part VI of the Bill. Part VI is designed to bring about a change in the law of the evidence in the Australian Capital Territory so far as it relates to the admissibility of documentary evidence. Prior to the ordinance coming into force last year the law in the Territory was such that the courts preferred to see witnesses rather than documents. That did have the unfortunate consequence that in many cases cogent evidence could not be considered. One should not forget that plain' im with rights to assert could often be in difficulties if, for example, medical evidence which could be given in support of their case was not given because in the period be'ween the examination being made by the doctor and the case being adjudicated in the courts the doctor had died. In those circumstances there is no question that a plain'iff is prejudiced unless there is some way in which what may be vital evidence is able to be brought before the courts. The vital evidence may be that on the initial examination the doctor discovered a certain condition and diagnosed it in a certain way and whether that is consistent with what subsequently transpired. Under the old provisions, if the doctor died there was absolutely no way in which that evidence could be brought in. It was to meet situations such as that that provisions of the character of those contained in Part VI of the Bill were introduced initially into the law of evidence in England in 1939. They were introduced into the law of evidence in my State, Victoria, in 1955.

Senator Byrne - They were introduced in Queensland in 1962.

Senator GREENWOOD - I am indebted to Senator Byrne - in Queensland in 1962. They were introduced in New South Wales in civil proceedings in 1954. From my experience I think they have a utility in the conduct of civil proceedings. Possibly their utility is no: as great as it could be because I believe there is a tendency on the part of practitioners to feel that judges construe these provisions somewhat rigorously against the persons who seek to rely upon documentary evidence. Accordingly not as many applications are made as could be made to have the documentary material brought before the courts. But this is all in the realm of civil proceedings. I gathered that, while a certain caution was expressed by Senator Murphy and Senator James McClelland as to the advisability of these provisions in civil proceedings, they are not challenging that area of operation. What they are challenging and what they are seeking to do by way of amendment is to exclude the operation of these provisions in regard to criminal proceedings. I think that as a general rule if material is admissible as evidence in civil proceedings prima facie the same conditions of admissibility should apply with regard to criminal proceedings. Because there is a risk of prejudice to an accused person and because the accused person is in jeopardy in a way that a person is not in jeopardy if he is engaged in civil proceedings, the law has always clothed criminal proceedings with a particular cloak which has to be pierced in order to have certain evidence admitted. This is the view which has been taken with regard to Part VI of the Bill.

It will be noted that certain criteria apply to both criminal and civil proceedings where documentary evidence is admissible upon certain conditions being satisfied. A distinction is drawn in clause 29 (3.), which applies to civil proceedings. Clause 31 deals with criminal proceedings. It states:

Nothing in this Part renders admissible, as evidence in a criminal proceeding a statement in a document made at a time when that proceeding was pending or at a time when- it might reasonably have been contemplated by the maker of the statement that criminal proceedings would be instituted.

As far as time is concerned that avoids any suggestion that a document may have been fabricated for use in a criminal proceeding. Under clause 38 (2.) the judge is given a discretion to exclude a statement. I will read the sub-clause. It states:

In a criminal proceeding, the judge may refuse to admit in evidence in pursuance of this Part a statement in a document tendered in evidence if he has reason to doubt the reliability of the document or is satisfied that it would be unfair to the person charged to admit the statement in evidence.

I think that is a guarantee and a protection to the accused person. If that does not take the situation far enough, clause 76 does. It states:

Nothing in this Act affects the court's discretion to exclude evidence in a criminal proceeding if the court is satisfied that it would be unfair to the person charged to admit that evidence.

Throughout the Bill there are protections - admittedly reposed in the court. I believe that all of us who practise law accept that the discretion exercised by judges as to what may or may not be introduced in evidence is a very real safeguard to accused persons.

Senator Murphy - Depending on the judge.

Senator GREENWOOD - -I accept what Senator Murphy said. I suppose history reveals particular exceptions, but I believe that Australia is tremendously well served by its judiciary. I make the statement that I am making on the basis that the judges do exercise their discretion in a way that generally works in favour of the accused rather than in a way that prejudices him.

Senator Murphy - I think all of us would agree with that. That is the general rule, but there are exceptions.

Senator GREENWOOD - I think they are very few. I sense that there is an overall interest which has to be preserved and which is preserved by ensuring that a prosecution is not nullified by inability to put before the judge and the jury relevant material and leaving it to the judge to exclude the material if it is or if it would be unfair. These provisions are not new provisions. As 1 said in my second reading speech, the provisions permitting the admissibility of documentary evidence were introduced in England in 1965 by the Criminal Evidence Act, and similar provisions have since been introduced in New

South Wales, Victoria and Western Australia. In New South Wales similar provisions were introduced in 1965. I think it is incumbent on those who would seek to exclude the applicability of these proviions to criminal proceedings to show where they have operated unfairly in the 6 or 7 years that they have been in operation in the United Kingdom and New South Wales and in the periods for which they have been in operation in the other States of Australia.

I had not heard in the almost 12 months that these provisions have been in operation in the Australian Capital Territory that their application had excited comment. I should have thought that, with the discretion reposed in the judges who sat in the Australian Capital Territory, no problem was likely to be experienced in this area. I can only suggest to Senator Murphy and his colleague that the provisions are reasonable. They do permit the use of documentary evidence in a way that documentary evidence ought to be admitted where exceptional circumstances preclude the direct appearance and attendance of the person who made the statement in the document and where the admissibility and weight to be given to the statement is clearly preserved by express provisions entitling the judge either to exclude the evidence or to diminish the weight to be given to it. I think the provisions are reasonable and I do not think they would be prejudicial to an accused.

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