Page 3514 - Week 09 - Thursday, 21 August 2008
institutionalise investigative practices that are not considered best practice. It re-writes concepts of a fair trial that have existed for centuries.
Mr Archer claims that the proposed method of lengthy questioning and interviews by police rather than written statements by witnesses will lead to difficulties with the admissibility of evidence as police officers often may lack the special training to ensure admissibility. He believes that this practice will lead to large numbers of revisions before evidence can be admitted and will also lead to waste and delays as prosecutors, judges and juries trawl through hundreds of pages of transcripts to attempt to draw out the relevant facts.
Mr Archer claims that the evidentiary provisions of this bill will lead to inadmissibility of evidence under the Evidence Act 1995, which is a commonwealth act that cannot be altered by this Assembly. In particular, Mr Archer claims that the previously recorded statement may be regarded as inadmissible under the hearsay rule dealt with in part 3.2 of the commonwealth act.
The effect of this would be that crucial evidence may become inadmissible in a serious case such as a rape case and, as a result, a guilty offender may escape conviction on the basis of an unintended evidentiary error. If this occurs the prosecution will not get a second bite of the cherry because of the double jeopardy rule. We will not be able to come back to this Assembly and simply say, “Well, we made an error. Now we will fix it up.” If a miscarriage of justice has already occurred it will be too late to do anything about it.
Mr Archer notes that the ACT is bound by the commonwealth Evidence Act and cannot escape these provisions in this context. He cites case law to this effect in Somonfi v Dowden in 1999 and in R v EG in 2002. He contrasts this with the position in New South Wales where the Evidence Act is amenable to qualification by New South Wales legislation. He also notes that the NSW Criminal Procedure Act expressly exempts the operation of the hearsay rule in this context, suggesting that the rule may indeed apply in the ACT to disqualify this kind of evidence.
Mr Archer notes that if an objection is made at the committal stage and parts of the interview that are essential to the prosecution case are excluded, then it is unclear whether the DPP may call the witness to make good on this problem. He notes that if this is not the case, then the prosecution will be dismissed. I would also note that even if the DPP are able to call the witness, then this would defeat the purpose of the current bill, which is to allow victims to avoid court testimony.
These are serious claims which must be taken very seriously as they have the potential to undermine the proper administration of justice in a serious criminal offence case. I understand from discussions with Civil Liberties Australia that they have asked the government to get an expert opinion from counsel on this issue to ensure that this evidentiary issue does not derail an important prosecution. We have heard lots today about the law and correctness in getting specialist advice. If the concerns that have been flagged by Mr Archer in his letter to the Minister for Police and Emergency Services and Attorney-General dated 14 August are found to be valid, then this legislature has cause for real concern.