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Talbot, Anna --- "The use of secret evidence in civil and criminal proceedings" [2017] PrecedentAULA 58; (2017) 142 Precedent 30

THE USE OF SECRET EVIDENCE IN CRIMINAL AND CIVIL PROCEEDINGS

By Anna Talbot

As lawyers, we are accustomed to court procedures that seek to ensure fairness between parties. In criminal matters, these procedures ensure that the party with the most to lose, the defendant, is assured a fair trial, to minimise the risk that an innocent person could be punished for a crime they have not committed. The case against an accused must also be clear enough for them to be able to refute it.^[1] In civil matters, these procedures seek to ensure fairness between the parties, including ensuring that both sides have access to relevant evidence. These principles form an essential foundation to the judicial process, the independence of which is guaranteed by the Constitution.

The tradition underpinning these procedures is strong. Fundamentally, the prosecution is obliged to ensure that, in a criminal proceeding, a trial is fair to the accused.^[2]

The public interest immunity exception has always been available at common law, and more recently in statute, to exclude evidence from a proceeding that it would be contrary to the public interest to admit.^[3] The identity of police or other informers,^[4] cabinet papers,^[5] and of course national security^[6] 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.^[7] However, once excluded, such evidence is not considered during the court’s decision-making process.

Recent legislation and case law demonstrate a new trend, whereby evidence is admitted into court and is available to one side (the prosecution, in criminal matters), but not to the other, even though that evidence may be used against them. The circumstances in which this evidence is selectively admitted is much broader than the public interest immunity exception, being based on national security^[8] or criminal intelligence.^[9] Much more leeway is also granted to the Executive to exclude evidence from scrutiny.

This trend of increasing availability of secret evidence coincides with a dramatic increase in the use of civil proceedings that can result in severe penalties, once traditionally available strictly as criminal punishments. Federally, control orders,^[10] preventative detention orders, and continuing detention orders (all creatures of counter-terrorism legislation) all allow severe curtailment of liberty, including lengthy periods of detention, on the satisfaction of the civil standard of proof, and applying civil rules of evidence.^[11] At the state level, organisations can be labelled ‘outlaw’ or ‘illegal’ in a civil proceeding, with members effectively being criminalised as a result.^[12] As such, the expansion of the use of secret evidence in civil proceedings is also cause for concern.

Generally, courts have read down provisions allowing for the use of secret evidence, so that the proceeding remains sufficiently fair to meet constitutional requirements. In practice, however, courts have generally not intervened to overrule an Executive determination that evidence must be withheld for national security or similar reasons. This trend has been described as a move from the guarantee of a fair trial to ‘curial’ fairness, where the court takes it upon itself to determine whether fairness can still be achieved where a party is denied access to sensitive evidence.^[13] However, this trend means that there is a risk that 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. It is therefore useful to examine how the rules of evidence in both criminal and civil proceedings have developed in recent years, to better understand how to navigate this situation if you have a client who does not have access to all of the evidence being used against them.

COMMONWEALTH

In 2004, the National Security Information (Criminal Proceedings) Act 2004 (Cth) was passed by the Federal Parliament, changing long-standing rules regarding the use of evidence in federal criminal trials.^[14] Reforms introduced the following year extended this legislation to civil proceedings, which are any proceedings in a court of the Commonwealth, a state or territory, other than a criminal proceeding: s15A.^[15] The purpose of this Act was ‘to prevent the disclosure of information in Federal criminal proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice’.^[16] Similarly, when extended to cover civil proceedings, the purpose was to ‘[t]o provide a statutory regime governing the use of national security information in civil proceedings’.^[17]

Under the renamed National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act), ‘national security information’ is defined as information (a) that relates to national security; or (b) the disclosure of which may affect national security: s7. National security, in turn, is defined as meaning ‘Australia’s defence, security, international relations or law enforcement interests’: s8.

Where national security information is potentially going to be revealed in a federal criminal proceeding, parties are obliged to report this to the Attorney-General (s24), who can decide whether to issue a non-disclosure certificate or not: s26. Where it is expected that national security information is to be disclosed by a witness orally, the court can order the witness to give a written answer, which can then be reviewed by the prosecutor, the Attorney-General and the Attorney’s legal representative if they are available, who may then seek to exclude or censor the response to avoid disclosing national security information: s25. In this way, the prosecution can have advanced access to the defence strategy beyond what is normally required to be disclosed. Similar obligations exist in relation to civil proceedings: ss38D-F.

The Attorney-General can also issue such a certificate in the absence of a notification, if s/he expects that national security information is to be revealed in a proceeding: s26(1). The Attorney may then give the potential discloser of the information a certificate with the information deleted, potentially attached to a summary of the deleted information, or possibly a document stating the facts that the deleted information would (be likely to) prove: s26(2). Where the information was not in the form of a document (such as verbal evidence), similar provisions apply, catering for the information’s non-documentary nature: s26(3). The Attorney is not compelled to provide a certificate in these circumstances, in which case s/he must advise each potential discloser of this decision in writing: s26(7).

Similar provisions also apply in relation to civil proceedings: ss38F-38H.

If a certificate is granted, the court must then hold a closed hearing to decide whether or not to order the non-disclosure of information referred to in the certificate: ss27(3), 38G. In making that decision in relation to federal criminal proceedings, the court must consider both whether there would be a risk to national security and also the risk of a ‘substantial adverse effect on the defendant’s right to receive a fair hearing’, with greater weight to be given to the former: ss31(7), (8). In civil proceedings, instead of considering the right to a fair hearing, the court will consider ‘whether any such order would have a substantial adverse effect on the substantive hearing in the proceeding’: s38L(7)(b). Again, the greatest weight is given to the risk to the prejudice of national security: s38L(8). These provisions relate only to the closed hearing, in which decisions are made as to whether information is national security information that should be withheld or censored, whether it is in the form of a document or the testimony of a witness. Parties to these proceedings do not always have a right to attend these closed hearings where such attendance might prejudice national security (ss29(3), 38I(3)), although parties do have a right to make submissions regarding any application to exclude evidence or witnesses: ss29(4), 38I(4).

Under ss19(1A) and (3A), the court is empowered to make any orders it considers necessary in federal criminal and civil proceedings respectively ‘in relation to the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information if:

(a) the court is satisfied that it is in the interest of national security to make such orders; and

(b) the orders are not inconsistent with [the] Act; and

(c) the orders are not inconsistent with regulations made under [the] Act.’

This legislation does not represent the first opportunity for courts to exclude evidence in the national interest, as discussed above. The change, rather, was that this legislation allowed courts to admit evidence into court that was not available to both sides. Previously, where evidence was excluded on public interest grounds, some exculpatory evidence might not be available for a defence, although in such circumstances courts would be reticent to exclude such evidence.^[18] In any case, there would never be a situation in which evidence could be used against a party to a proceeding which that party had not had the opportunity to examine and challenge.

INITIAL CONCERNS WHEN THE BILL WAS INTRODUCED

When the legislation was initially enacted, and before it was extended to civil proceedings, the Senate Standing Committee on Legal and Constitutional Affairs (the Committee) considered these provisions in relation to federal criminal proceedings. Bret Walker SC, appearing as the then-President of the Law Council of Australia (LCA), raised concerns about the constitutionality of what was to become s31 during the hearing concerning the Bill, on the basis that withholding evidence from an accused could give rise to an unfair trial:

During the Senate hearing for the original Bill, there was a tense exchange between a Labor Senator and a member of the Attorney-General’s Department. During the exchange, Senator Bolkus explained his concerns that the Bill might give rise to unfair convictions:

‘The fact that a person cannot see or test the evidence, the fact that a person may not get notice of a hearing, the fact that a person or their counsel may not be present, the fact that there may be conclusive evidence in respect of the facts all lead one to believe that this is a Star Chamber process. Not the closed aspect of it in itself, but the denial of access of the contestability of evidence could actually lead to a situation where someone could have a trial, not know the witnesses, not know the critical evidence, not be present and be found guilty.’^[19]

In reply, Ms Jackson of the Attorney-General’s Department stated categorically that ‘the potential consequence of this legislation is that exculpatory evidence could be excluded’.^[20]

‘[T]here is a technical legal argument, which happens also to have a strong social foundation, in Chapter III of the Constitution which says that that is actually an untradable [sic] aspect of the administration of justice—that parliament cannot require unfair trials’.^[21]

In its report on this Bill, the Committee expressed concern ‘that the defendant and/or his [or her] legal representatives may be denied full access to information relating to their case’.^[22] To that end, it recommended that what was to become s31(8) be removed, and the term ‘substantial’ removed from what was to become s31(7)(b). It further recommended:

‘that the Bill be amended to include a provision that requires the court, when making an order allowing information to be disclosed as being subject to the Attorney-General's non-disclosure certificate, to be satisfied that the amended document and/or substitution documentation to be adduced as evidence would provide the defendant with substantially the same ability to make his or her defence as would disclosure of the source document’.^[23]

These recommendations were not accepted.

JUDICIAL CONSIDERATION OF CRIMINAL PROCEEDINGS PROVISIONS

As these provisions have been tested by the courts, it appears that the worst fears – that they could give rise to unfair trials – have been mitigated by narrow readings of the relevant provisions. However, significant concern remains. The NSW courts considered these provisions in 2007 in a series of cases concerning Faheem Lodhi, the first man convicted of preparatory terrorism offences in Australia.^[24]

In April 2004, Lodhi was charged with four preparatory terrorism offences. On being found guilty of three of those offences, he was sentenced to 15 to 20 years in prison.^[25] Lodhi challenged his conviction on a number of grounds, including that evidence was considered by the court that he and his defence lawyers did not have access to, giving rise to unfairness, and that s31(8) of the NSI Act was unconstitutional, as it infringed on judicial independence by dictating that national security be given greatest weight.^[26] His appeal to the NSW Court of Criminal Appeal was rejected, and leave to appeal to the High Court refused.^[27]

In rejecting this argument, Whealy J at first instance found that the ‘greatest weight’ expression:

‘did no do more than to “give the Court guidance as to the comparative weight it is to give one factor when considering it alongside a number of others”. His Honour continued:-

Yet the discretion remains intact...it seems to me that there is no warrant for supposing other than that, in a proper case, the Court will order disclosure or a form of disclosure other than that preferred by the Attorney-General. The legislation does not intrude upon the customary vigilance of the trial judge in a criminal trial. One of the court’s tasks is to ensure that the accused is not dealt with unfairly. This has extended traditionally into the area of public interest immunity claims. I see no reason why the same degree of vigilance, perhaps even at a higher level would not apply to the Court’s scrutiny of the Attorney’s certificate in a s 31 hearing. (emphasis added)’^[28]

The constitutionality of this legislation was later supported by the NSW Court of Criminal Appeal:^[29] ‘while the [NSI Act] “tilt[s] the balance” in favour of national security, this did not render the legislation unconstitutional’.^[30] The fact that the first instance judge rejected some applications for secrecy appeared to be relevant in the decisions to refuse an appeal.^[31]

Following these cases, Bret Walker SC as the Independent National Security Legislation Monitor (INSLM) considered that the provisions clearly met requirements under Chapter III of the Constitution^[32] and the fair trial standards of the International Covenant on Civil and Political Rights (ICCPR)^[33] effectively reversing concerns that he had expressed earlier as President of the LCA.

This confidence in the possibility of a fair trial in the absence of access to all the evidence was not shared, however, by members of Lodhi’s defence team. According to Nicholas J Broadbent, who was a solicitor on that team, ‘[a] substantial amount of evidence was heard in camera, with some witnesses concealed from the defendant and providing testimony under pseudonyms.’^[34] Broadbent considered that the ‘incremental infringements upon a defendant’s due process rights’ gave rise to a ‘serious potential for a miscarriage of justice’.^[35]

STATES AND TERRITORIES: QUEENSLAND

In 2009, the Criminal Organisation Act 2009 (Qld) (COA) was introduced in the Queensland government’s campaign to clamp down on serious organised crime. This Act has since been repealed.^[36] However, before this repeal the legislation was tested in the High Court on constitutional grounds, on the basis that it offended the separation of powers required by Chapter III by undermining the institutional integrity of the Supreme Court of Queensland, in Condon v Pompano Pty Ltd (Pompano).^[37] The Court held unanimously that the legislation was valid, as the Court retained the capacity to act impartially and fairly.

This COA allowed the court to declare an organisation to be a ‘criminal organisation’ if certain criteria were met: s10. Such a declaration could be based on ‘criminal intelligence’ (being information relating to actual or suspected criminal activity, disclosure of which could reasonably be expected to prejudice a criminal investigation, reveal a confidential source or endanger life or safety, as defined in s59), which could be withheld from the respondent organisation or any other person that it might be used against: s82. The Supreme Court of Queensland was required to hear applications from the Police Commissioner that information was criminal intelligence in a closed hearing, with no notice to or involvement of affected parties. In practice, this meant that the respondent might be unaware criminal intelligence had been used against them at all.

Once such a declaration was made, the court could impose restrictions on members of those organisations, including control orders (s18) or public safety order: s33. Contravening such orders could give rise to a prison sentence: ss24, 38. As such, under this regime, serious criminal penalties could be available on the basis of a declaration that an organisation was a criminal organisation, relying on evidence that was not made available to the organisation or any member thereof.

Under the COA, any application to the court that information is ‘criminal intelligence’ must be made ex parte (s66) and all persons other than the applicant, the applicant’s representative, the Criminal Organisation Public Interest Monitor (COPIM), necessary witnesses and court staff are excluded: s70. Informants were not required to appear: ss64, 76. Rather, their information was made available to the court by way of an affidavit.

As a measure of balance, the Act introduced the role of the COPIM, which was tasked with representing the ‘public interest’ in criminal intelligence hearings: ss83, 86. This role was held according to the terms set by the Governor in Council (s83(2)), suggesting that they could have an incentive to perform their role in accordance with the wishes of politicians. As the COPIM represented the public interests, rather than the interests of the respondent organisation or individual,^[38] there was no safeguard to ensure that the respondent’s interests were represented, or even known, in relation to declarations of criminal intelligence. Further, the respondent had no opportunity to rebut criminal intelligence being used against it.

In Pompano, the High Court considered whether granting the Supreme Court power to make a finding on criminal intelligence with the respondent excluded infringed its independence, in conflict with constitutional requirements. The Court essentially read down provisions that would undermine judicial independence, on the basis that the court retains its inherent jurisdiction to ensure proceedings are not unfair on the basis that it retained a capacity to ensure fairness and guard against injustice.

STATES AND TERRITORIES: WESTERN AUSTRALIA

A similar law had been passed in Western Australia in 2003: the Corruption and Crime Commission Act 2003 (WA).^[39] 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 there is a suspicion they are 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, which has the effect of 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) when a fortification removal notice was issued in relation to a property in Maddington, Perth. The Gypsy Jokers received only an edited version of the affidavit that the Commissioner used in his application for the fortification removal notice. 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.^[40]

CONCLUSION

In recent years the traditional requirement of open justice has been watered down 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 diluted.

Where clients are being denied access to evidence to be used against them, the above cases may provide some insight into how to navigate that circumstance. It appears that it is not enough that evidence has been used without a party seeing it. There may be a need to demonstrate actual unfairness. 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. PHONE (02) 3258 7700 EMAIL anna@lawyersalliance.com.au.

^[1] Al Rawi v Security Service [2010] 4 All ER 559.

^[2] Richardson v the Queen [1974] HCA 19; (1974) 131 CLR 116; R v Lucas [1973] VR 68.

^[3] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 38 per Gibbs ACJ; Evidence Act 1995 (Cth), s130 (similar provisions exist in each of the Uniform Evidence Act jurisdictions: ACT, NSW, NT, Tas, Vic. While these jurisdictions all have minor variations in evidence rules, each has an equivalent of s130: <https://www.ag.gov.au/LegalSystem/Documents/Uniform-Evidence-Acts-comparative-tables.pdf>).

^[4] Attorney General (NSW) v Stuart (1994) 34 NSWLR 667; ASIC v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 169 FCR 227.

^[5] Lanyon v the Commonwealth (1974) 129 CLR 650; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1.

^[6] Allister v the Queen [1984] HCA 85; (1984) 154 CLR 404, 436 per Wilson and Dawson JJ.

^[7] Ibid, 414 per Gibbs, Murphy J agreeing; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 42 per Gibbs ACJ.

^[8] National Security Intelligence (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act), s8.

^[9] Criminal Organisation Act 2009 (Qld), s59.

^[10] Control orders can lead to detention if their terms are breached. While civil orders that provide for detention if breached, such as apprehended violence orders, have existed for some time, the terms of these orders are much more confined (eg, the order will prohibit its subject from contacting a single person or attending specific places) when compared with control orders, which can put blanket bans on communication and require constant location monitoring.

^[11] Criminal Code Act 1995 (Cth), divs 104, 105, 105A. Note that courts are not involved in the issuing of preventative detention orders: ss105.2, 105.8. They are, however, involved in making control orders (s104.4, 104.9, 104.14) and continuing detention orders: s105A.7.

^[12] Corruption, Crime and Misconduct Act 2003 (WA); Criminal Organisation Act 2009 (Qld) (now repealed).

^[13] Greg Martin, ‘Outlaw Motorcycle Gangs and Secret Evidence: Reflections on the Use of Criminal Intelligence in the Control of Serious Organised Crime in Australia’[2014] SydLawRw 22; , (2014) 36 Sydney Law Review 501, 503.

^[14] NSI Act, s14.

^[15] National Security Information Legislation Amendment Act 2005 (Cth). With the passage of this Bill, the name of the legislation was changed to the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). Note that this regime accordingly appears to apply to all proceedings other than criminal proceedings that do not have any federal component.

^[16] Senate Legal and Constitutional Legislation Committee, Report on the Provisions of the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004, (August 2004), [1.2].

^[17] Parliament of Australia Bills Digest No. 144 2004-05, National Security Information Legislation Amendment Bill 2005, <http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd0405/05BD144> .

^[18] Allister v the Queen [1984] HCA 85; (1984) 154 CLR 404, 414 per Gibbs CJ.

^[19] Senate Legal and Constitutional Legislation Committee, Committee Hansard, 5 July 2004, Sydney, 42.

^[20] Ibid, 39.

^[21] Ibid, 14.

^[22] Senate Legal and Constitutional Legislation Committee, above note 16, [3.74].

^[23] Ibid, [3.75].

^[24] Lodhi was the first person to be convicted of preparatory terrorism offences under the Criminal Code Act 1995 (Cth), div 101: Andrew Lynch, Nicola McGarrity and George Williams, Inside Australia’s Anti-Terrorism Laws and Trials: A timely examination of the impact of Australia’s anti-terror laws after September 11 and the new 2014 terror laws, (2015) NewSouth Publishing, 29-30.

^[25] Ibid, 30.

^[26] R v Lodhi [2006] NSWSC 571; (2006) 163 A Crim R 448 and Lodhi v R (2007) 179 A Crim R 470.

^[27] Lodhi v The Queen & Anor [2008] HCATrans 225 (13 June 2008).

^[28] Bret Walker SC, Independent National Security Legislation Monitor, Annual Report, 7^th November 2013, 138, quoting R v Lodhi [2006] NSWSC 571, [108].

^[29] Lodhi v R [2007] NSWCCA 360, [39], [66], [75], per Spigelman CJ.

^[30] Lynch et al, above note 24, 120.

^[31] Lodhi v The Queen & Anor [2008] HCATrans 225 (13 June 2008), per Crennan J.

^[32] Bret Walker SC, above note 28, 138.

^[33] Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976.

^[34] Nicholas J Broadbent, ‘Faheem Khalid Lodhi v Regina [2007] NSWCCA 360’, (2007) 14 Australian International Law Journal 227, 234.

^[35] Ibid, 236.

^[36] Serious and Organised Crime Legislation Amendment Act 2016 (Qld), s492.

^[37] [2013] HCA 7; (2013) 252 CLR 38.

^[38] Pompano 671 [111], per Hayne, Crennan, Kiefel and Bell JJ, 655 [54], 662[77], per French CJ, 693 [208] per Gagler J, as referenced in Greg Martin, above note 13, 506.

^[39] The name of this legislation changed to the Corruption, Crime and Misconduct Act 2003 (WA) in 2015: Corruption and Crime Commission (Misconduct) Act 2014 (WA), s5.

^[40] Gypsy Jokers Motorcycle Club Ltd v Commissioner of Police (WA) (2008) 234 CLR 532, 572 [82] per Kirby J (in dissent).