The use of secret evidence in criminal and civil proceedings
5th Oct 2017
Court procedures aim to ensure fairness between parties. In criminal matters, the intention is to ensure that the party with the most to lose, the defendant, is assured a fair trial, to avoid punishing innocent people for crimes they have not committed. This requires setting out the case against an accused clearly enough that they can refute it. In civil matters, these procedures seek to ensure fairness between the parties, including ensuring that both sides have access to relevant evidence.
The public interest immunity exception has always been available at common law, and more recently in s130 of the Evidence Act 1995 (Cth) (and equivalent sections in the Uniform Evidence Act jurisdictions), to exclude evidence from a proceeding that it would be contrary to the public interest to admit. The identity of police or other informers, cabinet papers, and of course national security matters have all been protected in this way. Where the relevant information might tend to assist the accused in their defence, immunity is less likely to be granted. However, once excluded, the court cannot take such evidence into account.
Recent legislation and case law suggests that this steadfast commitment to fairness is under attack. Legislation permitting evidence to be admitted into court and made available to one side (the prosecution, in criminal matters) but not the other, for national security and similar reasons, has been found to be constitutional.
This trend coincides with a dramatic increase in the use of civil proceedings that can impose severe penalties, traditionally available strictly as criminal punishments. Federally, control orders, preventative detention orders, and continuing detention orders (all creatures of counter-terrorism legislation) can severely curtail liberty, and allow lengthy periods of detention, on the satisfaction of the civil standard of proof, and by applying civil rules of evidence. At state level, organisations can be labelled ‘outlaw’ or ‘illegal’ in a civil proceeding, effectively criminalising members as a result. Therefore, the expansion of the use of secret evidence in civil proceedings is also of concern.
Although courts have generally read down provisions allowing for the use of secret evidence, so that proceedings remain sufficiently fair to meet constitutional requirements, they have generally not intervened to overrule an Executive determination that evidence must be withheld for national security or similar reasons. There is a risk that such untested evidence will be unfairly prejudicial to a party to proceedings; for example, if it was based on a simple error of fact or misunderstanding.
In 2009, the Criminal Organisation Act 2009 (Qld) was introduced in the Queensland government’s campaign to clamp down on serious organised crime. This Act has since been repealed. However, before this repeal the legislation was tested in the High Court on the basis that it offended the separation of powers required by Chapter III of the Constitution by undermining the institutional integrity of the Supreme Court of Queensland, in Condon v Pompano Pty Ltd (2013) 252 CLR 38. The Court held unanimously that the legislation was valid, as it retained the capacity to act impartially and fairly.
The Court essentially read down provisions that would undermine judicial independence, on the basis that the court retains its inherent jurisdiction to ensure fair proceedings because it retains a capacity to ensure fairness and guard against injustice.
A similar law was passed in Western Australia in 2003: the Corruption and Crime Commission Act 2003 (now the Corruption, Crime and Misconduct Act 2003). Under Part 4 of this Act, exceptional powers are made available to combat organised crime, including stopping and searching people and property without a warrant, where they are suspected of being connected to organised crime. It also provides for the Commissioner of Police (the Commissioner) to issue a ‘fortification removal notice’, where s/he is satisfied on the balance of probabilities that a premises is heavily fortified and habitually used by people involved in organised crime: s68. While such notices can be disputed, the Commissioner retains a right to label any information that it provides to the court as confidential, rendering it secret from any other person, whether they are a party to the proceedings or not: s76(2).
This legislation was challenged by the Gypsy Jokers Motorcycle Club (Gypsy Jokers) in Gypsy Jokers Motorcycle Club Ltd v Commissioner of Police (WA) (2008) 234 CLR 532. The Gypsy Jokers received only an edited version of the affidavit that the Commissioner used in his application for a fortification removal notice relating to one of their properties. They disputed the validity of s76(2) on constitutional grounds, but were unsuccessful in their appeal to the High Court, which found that the Supreme Court retained discretion to determine whether to accept the confidentiality claimed by the Commissioner, and thus was not impermissibly being directed by the Executive in the exercise of judicial functions. In that case, Kirby J noted that the majority (from which he dissented) departed from both usual judicial practice and the arguments that had been made by the parties to read the impugned provision down, so that it might not conflict with Chapter III requirements.
In recent years, the traditional requirement of open justice has been diluted by federal and state legislation. While the courts have read this legislation down, in line with Chapter III of the Constitution, the fact remains that traditional fair trial requirements have been weakened.
The above cases may provide some insight into how to navigate circumstances where clients are being denied access to evidence to be used against them. It is not enough that evidence has been used without clients seeing it: actual unfairness appears to be required. Ultimately, however, evidence may be used in criminal or civil proceedings that is not accessible to those against whom it is being used.
Anna Talbot is the ALA’s Legal and Policy Adviser. The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
This article is an edited extract of an article that will be published in full in the October 2017 edition of Precedent focusing on civil and criminal procedure.