Page 3854 - Week 09 - Thursday, 25 August 2011
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rights in order to protect the life, liberty or security of witnesses and the investigation of criminal matters.
This bill provides a number of protections to ensure that any limitations on human rights are reasonable and proportionate to the aim of protecting the safety and security of witnesses and the ongoing investigation of crimes. The bill ensures that the defence has the opportunity to question the witness in the presence of the court, allowing the tribunal of fact to make its own judgement as to their demeanour and reliability.
Other specific protections are provided by the bill to ensure that the right to a fair trial and rights in criminal proceedings are only limited to the extent necessary to achieve the purposes of the bill. A witness identity protection certificate can only be given where it is necessary for the protection of an operative’s, or another person’s, safety or an investigation. The chief officer giving the certificate must be satisfied that disclosing the operative’s true identity in a proceeding is likely to endanger the operative’s safety or that of someone else or prejudice an investigation.
The question of the risk posed by disclosure, to a person or to an investigation, of an operative’s identity sits firmly with the law enforcement agency. It is the law enforcement agency that has information about these risks and that is responsible for the health and safety of operatives and for the conduct of investigations.
The bill provides that certain information must be included on a witness identity protection certificate, such as whether the operative has been found guilty of an offence, any findings of professional misconduct and whether a court has made any adverse comment about the operative’s credibility. In addition to being able to face the operative witness in court and observe his or her demeanour, this information will further allow the accused in criminal trials to challenge the credibility of the operative without disclosing the operative’s identity.
One of the most important protective measures provided by the bill enables the court to give leave to allow the disclosure of a witness’s identity, despite the existence of a witness identity protection certificate. The court may give leave where the evidence of the witness’s identity would “substantially” challenge the witness’s credibility. The bill deliberately requires such a high standard before disclosure can occur as the risk to a witness if leave is granted to disclose their identity—that is, their real name—and the place where they are living is a very serious one, so requiring a commensurately high standard for the accused in showing that such disclosure is required and is appropriate.
Furthermore, if there are cases where the protection of the witness’s identity means that the defendant is unable to properly test the facts in issue, the court has discretion to stay the proceedings in the interest of justice. The joint working group, which developed the model legislation, noted in their Cross-border investigative powers for law enforcement report in November 2003 that “a case where a stay would be necessary would be very rare”.
This bill will provide important protections to undercover operatives who are involved in proceedings. It will protect their safety and security and that of their family
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