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Thursday, 9 March 1972
Page: 624

Senator James McClelland (NEW SOUTH WALES) - Supplementing the remarks made by Senator Murphy on this aspect of the Bill, I wish to cite one or two examples that fall within my own experience in the civil sphere which, I think, underline the dangers of extending these provisions into the criminal sphere. As Senator Murphy said, even though similar provisions do exist in relation to civil actions in New South Wales, they are in fact very rarely availed of in practice. Let us look at the terms of clause 29 and consider what could be done pursuant to that provision in a civil action. Let us take as an example a common law action for damages for personal injury occurring at the steel works at Port Kembla. I choose that example because in my own personal practice T have conducted many such actions.

A material witness to the events that are the subject of the action might be, say, a Yugoslav migrant. The steel works at Port Kembla employ many such people. Before they come to this country, some of them are Macedonian peasants with no acquaintance whatsoever with secondary industry, no knowledge of the language and completely strange in their new environment. Such a man might be a witness of an industrial accident. Shortly after such an accident occurs, it is the practice for a safety officer or an industrial officer employed by the company to investigate the circumstances of the accident, to take statements often with the assistance of an interpreter and to reduce those statements to writing, have them signed and witnessed by a justice of the peace and preserved against the possibility of just such litigation.

It also frequently happens in practice there, or it has in the past, that such people do not stay in Australia a great length of time; they go back to their mother country. Under clause 29, such a statement would fulfil the requirements of this Bill. It would come into the category defined by that clause. Clause 29 provides: 1 Where direct oral evidence of a fact would be admissible in a proceeding--

Clearly the evidence contained in such a statement would be admissible as oral evidence if the man were persent: . . a statement made by a person in a document tending to establish that fact is, subject to this Parliament, admissible in a proceeding as evidence of that fact if the maker of the statement had personal knowledge of the matters dealt with in the statement--

As indeed he would - and if--

(b)   the maker of the statement is outside Australia and it is not reasonably practicable to secure his attendance as a witness;

(d)   the maker of the statement cannot with reasonable diligence be found.

He may have moved away from the Port Kembla area and gone somewhere else leaving no forwarding address. All of these requirements would be fulfilled. Counsel for the company, after the plaintiff had given his evidence tending to show that he had been injured by some negligent act of the company, could produce this statement and it would be. unobjectionable at the suit of the plaintiff except, I admit, for the safeguard which is provided by clause 32 of this Part which gives the presiding judge a discretion to reject such a statement if he decides that it was made under certain circumstances.

As I say, in practice I have not known counsel for the company, even though I have known counsel in many cases, to be armed with just such a statement to make an application to tender such a statement in evidence. For some reason or other, I have never encountered this. Perhaps the reason is the one suggested by Senator Durack, namely, that counsel in New South Wales are so steeped in rules against the admission of hearsay that it has not occurred to them to try to introduce such a statement

Senator Durack - I was not directing my remarks to counsel in New South Wales only.

Senator James McClelland (NEW SOUTH WALES) - I am confining myself to my own experience. But, in any event, under this clause I can see that there would be an opportunity for an enterprising counsel who was able to argue his way around any of the prohibitions or hedging in provisions contained in clause 32 to get such a statement into evidence. I believe that it would be a most dangerous thing for such a statement to be injected into the transcript of the case and to be considered as part of the case. I say that for obvious reasons. This is the sort of evidence which requires to be very severely tested in cross-examination. I am not reflecting in any way on the character or veracity of the type of person about whom I am talking. But because of his cultural background and the circumstances in which he finds himself, such a man may put into a statement matters which just will not stand up under cross-examination. He may have been over-borne, not in any deliberate or bullying sense, by the circumstances in which he makes his statement. He may feel that his job is in peril in some way if he does not give the answers which are, suggested to him by a foreman. If the evidence is to have any real weight, I suggest that it would need to be made by the man in person and would need to be tested in cross-examination. I would not like to see that sort of evidence admitted in a civil action and I say that, in practice, I have not seen such evidence tendered. But, as Senator Murphy has said, even though we feel these inhibitions about this sort of evidence even in a civil proceeding, we do not feel that there is an absence of safeguard.

For instance, I have pointed to clause 32. I would hope that the average judge would avail himself of the provisions of clause 32 to receive any such evidence with great caution. But a criminal trial is a different matter. We feel that, because of the dangers that are inherent in the admission of this type of document into evidence, we would like to see these provisions tested in the civil jurisdiction for some time before they were extended to the criminal jurisdiction. In this Part there is another clause - clause 31 - which imposes some restrictions on the admission of such a document, but we consider that it does not go far enough. The clause limits the admissibility to a certain set of circumstances which would not meet all the circumstances that could arise. We do not think that clause 31 provides sufficient safeguard for us to feel happy about this kind of code applying to criminal proceedings.

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