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Thursday, 9 March 1972
Page: 628

Senator GREENWOOD (VictoriaAttorneyGeneral) - The legislation before us is, in its general language, the same as the English Act of 1939. However, there is one exception, quite apart from the exception to which I referred earlier, which distinguishes the application of these English provisions in their criminal area as brought in by the 1963 legislation in England. The provision to which I refer is contained in clause 29(3.)- If Senator Byrne refers to that provision he will note that it is expressly limited to civil proceedings. It states:

Where, in a civil proceedings, direct oral evidence of a fact would be admissible, a statement made by a person in a document tending to establish that fact is (whether or not it would be admissible under the preceding provisions of this section) admissible in the proceeding as evidence of that fact if-

Then follow 2 conditions which must be satisfied. Those 2 conditions are the requirement of personal knowledge of the matters dealt with in the statement and that undue delay or expense would be caused by requiring the attendance of the maker of the statement. That may be a convenient way in a civil case of having documentary evidence tendered, where the maker of a statement is not present and available to be cross-examined, but certainly it is not adequate in terms of criminal proceedings. In criminal proceedings it is necessary to show, as is provided by clause 29(1.), that the maker of the statement had personal knowledge; that the maker of the statement is dead or out of Australia and that it is not practicable to obtain his attendance; that the maker of the statement is unfit by reason of old age or his bodily or mental condition to appear as a witness; or that he cannot with reasonable diligence be found. Suppose a statement is made by a person who had personal knowledge of the events which are involved in the criminal proceedings. 1 think to the minds of most of us to have a person's statement produced in court in that sense and not be able to cross-examine the person who made the statement is to create a situation where I believe injustice could be imposed upon an accused person who challenges that account, and he has no way of rebutting the document. If that situation arises, with alf the conditions having been satisfied - that the maker of the statement is dead, that the maker of the statement is outside Australia - we are forced back to the discretion of the judge. Of course, we have to decide as a matter of balance whether that discretion may be vested in a judge. After all, I think we have relied in times past - we can rely in the Australian Capital Territory - upon the judges to exercise that discretion in a way that will not work hardship or injustice on an accused person.

I refer to clause 76' and clause 38 (2.) to indicate the scope and the width of the discretion which is available to the judge. To that must be added, of course, the further provision contained in clause 31 that nothing renders admissible in a criminal proceeding as evidence a statement 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. I think that is the sort of situation which overcomes that passage which Senator Byrne read from Dr Cross's book. I refer the honourable senator to that part which indicates that the English provision did not admit statements made to solicitors or police officers by potential witnesses who have died or gone abroad, or letters containing relevant assertions. Some of those letters would be admissible under the Australian provisions which we are here contemplating, but I imagine that statements made to a police officer certainly would not be admissible because it is highly probable that they would be made at a time when proceedings were pending or when it might have been reasonably contemplated by the person who was making the statement to the police officers that criminal proceedings would be instituted.

As for the general weight which is to be given to a statement which is introduced, I draw Senator Byrne's attention to clause 32 of the legislation. This is comparable to the provisions which are contained in the language of the Australian statutes which introduce the admissibility of documentary evidence in criminal proceedings. Clause 32 states:

In deciding the weight (if any) to be given to a statement admitted in evidence under this Part, a court shall have regard to all the circumstances from which an inference can reasonably be drawn as to the correctness or otherwise of the statement, including . . .

The clause then sets out such things as the time the statement was made in relation to the occurrence or existence of the event which the statement is tendered to prove, the question whether or not the person who made the statement might be supposed to have had any incentive to conceal or misrepresent the facts, and whether or not there was an adequate basis, where it is a matter of opinion, for the making of that statement. Clause 33 provides for a further protection in relation to a statement which is admitted under clause 28. This is not to be treated as corroboration of evidence given by the maker of the statement. One obviously would not expect otherwise.

All of these provisions are designed to ensure that in the applicability of the provisions to the criminal area there is adequate protection along the lines I have indicated. I have no doubt that the matters to which Senator Byrne adverted and the matters to which Senator Murphy and Senator James McClelland adverted were considered by the persons who comprised the committee which established this legislation. I do not think for one moment that Mr Justice Fox is a person who is concerned to treat lightly the right of accused persons in trials in the courts of law. I think he has illustrated that on many occasions. I think the other persons who participated - Mr Justice Mason, Mr Harding, Professor Waller, Dr Cross and the officers of the Attorney-General's Department - have achieved in their approach to this a fair result. I can add only those persuasions which I have mentioned - that the weight of professional opinion which was to look at these matters ought to be added into any scales which may require to be balanced to support what are the considerations plainly to be seen in the language of the legislation which is designed to hedge the general admissibility of documentary evidence in criminal proceedings and to ensure that there is a protection to the accused in the discretions which are vested in the judge who tries the matter.

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