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Gans, J --- "FW: Evidence Law under Victoria's Charter: Rights and Goals (Part 1)" [2008] UMelbLRS 9

Last Updated: 28 September 2009

Evidence law under Victoria’s Charter: Rights
and goals – Part I

Jeremy Gans*

Victoria’s Charter of Human Rights and Responsibilities is the first human
rights law to apply comprehensively to an Australian jurisdiction’s law of
evidence. Many of the human rights promoted by the Charter match many of
the goals promoted by Victorian evidence law. However, there are also
mis-matches, arising from the limitations of international human rights law,
gaps in that law’s domestic implementation and the Charter’s deference to
legislative practice and purposes.

INTRODUCTION: INITIATIVES 1 AND 18

In May 2004, the Victorian Government issued its Justice Statement, a Cabinet-approved “vision” for the Attorney-General’s portfolio’s next decade.1 For evidence lawyers, the most relevant of its 25 “key initiatives” was the very first: to “review and replace” the Crimes Act 1958 (Vic) and the Evidence Act 1958 (Vic), which contain Victoria’s main statutory provisions on evidence.2 The fine print announced the government’s “proposal to implement legislation consistent with the model Evidence Acts” that apply in five other Australian jurisdictions, which would mean that much of the common law of evidence would be abolished in Victoria.3
More than four years down the track, Victoria’s new evidence legislation has only just surfaced.4 However, a much more radical part of the Justice Statement has not only been enacted but is already fully operational. Key initiative number 18 proposed community consultation on human rights “including the examination of options such as a charter of human rights and responsibilities”.5 As a result, the dourly named Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) was on Victoria’s statute books just over two years after the statement was issued.6 Although the Charter is not the first human rights statute in Australia, it is the first to apply comprehensively to a jurisdiction’s law of evidence.7

* Associate Professor, Melbourne Law School, University of Melbourne. A draft of this article was presented at the Evidence, Criminal Justice and Adjudication Colloquium, Faculty of Law, University of New South Wales, Sydney (21 April 2007). The author’s research on DNA identification is funded by the Australian Research Council.
1 Hulls R, New Directions for the Victorian Justice System 2004-2014: Attorney-General’s Justice Statement (Department of Justice, 2004), http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/About+Us/Our+Vision/JUSTICE+-
+Justice+Statement+and+PDF viewed 3 May 2007.
2 Hulls, n 1, p 24 (also announcing a review of the Bail Act 1977 (Vic)).
3 Hulls, n 1, p 26. See the Evidence Act 1995 (Cth) (applicable in the Australian Capital Territory (ACT): s 4), the Evidence Act 1995 (NSW), the Evidence Act 2001 (Tas) and the Evidence Act 2004 (Norfolk Island).
4 The Evidence Bill 2008 (Vic) was introduced to the Victorian Legislative Assembly on 24 June 2008. If passed unaltered, it will commence by 1 January 2010.
5 Hulls, n 1, pp 52-56.
6 Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), assented to on 25 July 2006. Section 1(1) allows the entire Act to be referred to as the Charter of Human Rights and Responsibilities. For an account of the progress of the Charter from initiative to Bill, see Williams G, “The Victorian Charter of Human Rights and Responsibilities: Origin and Scope” [2006] MelbULawRw 27; (2006) 30 MULR 880. Most of the Charter’s provisions commenced on 1 January 2007. Part 3, Divs 3 (Interpretation of laws) and 4 (Obligations on public authorities) commenced on 1 January 2008: s 2. Unless otherwise indicated, all references to statutory provisions are to the Charter.
7 Evidence law in the ACT is presently mostly contained in a Commonwealth statute (see Evidence Act 1995 (Cth), s 4) beyond the reach of the interpretation rule in the Human Rights Act 2004 (ACT): Fletcher v Harris [2005] ACTSC 27; (2005) 190 FLR 59 at [37], but cf Pappas v Noble [2007] ACTSC 26 at [44], noting the ACT Attorney-General’s intention to “repatriate” the Evidence Act 1995, ie re-enacting it as a Territory Act, which would then be subject to the Human Rights Act; cf s 4(6) providing for the Commonwealth Act to cease to apply in an ACT court by “proclamation”). Territory provisions on evidence law that are presently subject to the Human Rights Act include the Evidence Act 1971 (ACT) (but cf s 8(4)(a) of the Commonwealth Act,
The operative provisions of the Charter are directed to the issue of the “compatibility” (or
otherwise) of Victoria’s statutory provisions and the conduct of its public authorities “with human rights” (or a particular right).8 The question of the compatibility of Victoria’s law of evidence with human rights is complex, requiring a painstaking analysis of the pertinent sections of Pt 2 of the Charter (and the body of international and comparative law jurisprudence that underpins them), the content and purposes of Victoria’s evidence statutes (and the domestic and comparative common law jurisprudence that underpins them), and the behaviour and impact of Victoria’s courts and people associated with them. There is little point in canvassing these matters in detail at this early stage of the Charter’s operation especially as Victoria’s law of evidence is itself about to be largely altered.

Rather, this article considers a different question of interest to Victoria’s evidence lawyers: will
promoting the human rights set out in Pt 2 of the Charter promote the goals of evidence law? This question is essentially an evaluation of the Charter as a means of achieving evidence law reform. While this is certainly not the only way that the Charter’s impact can or should be felt, it has the advantage of being a means to gauge, at this nascent stage, the possible future impact of the Charter on Victorian evidence law. Questions of whether evidence law’s goals are appropriate and the specific reforms the Charter might promote can be left for another day. It is no idle conceit to ask whether the Charter will promote evidence law’s own reform agenda. The law of evidence has a strong association with human rights in two respects. First, evidence law’s primary end – accuracy in legally significant fact-finding – is a means to the proper application of the substantive law, including those parts of the law that protect human rights. Secondly, where evidence law sacrifices its primary goal, it often does so precisely because the search for truth can impinge on others’ rights.
This article focuses on the relationship between the Charter and the law of evidence (as opposed to the institutions that develop and apply it). The first two sections, in turn, examine whether the Charter promotes each of these imperatives of the law of evidence. The final section considers the potential for the rights-focused reform of evidence law to be blunted by the Charter’s unnecessarily broad deference to aspects of Victorian evidence law. A companion article, to be published in the next issue of this journal, will examine the law of evidence’s amenability to the Charter’s mechanisms for changing laws and legal practices, as effected through obligations and remedies aimed at institutions responsible for the development and application of evidence law.

ACCURATE FACT-FINDING: THE RIGHT TO BE RIGHT

The core of the Charter is Pt 2, which sets out “the human rights that Parliament specifically seeks to protect and promote”.9 Part 2 contains 20 sections of rights, freedoms and protections, modelled on Part III of the International Covenant on Civil and Political Rights (ICCPR).10 The list encompasses broad aspects of human life such as life itself, work, movement, privacy, thought, religion, expression, association, families, public affairs, culture, property and liberty. A further provision in Pt 2 deals with when these rights “may be limited”.11

reg 4 of the Evidence Regulations 1995 (Cth)) and the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Three other Australian jurisdictions – the Commonwealth and Tasmania (both uniform evidence legislation jurisdictions) and Western Australia (common law) – are presently considering introducing human rights regimes of a similar nature to the Charter: see Tasmania Law Reform Institute, A Charter of Rights for Tasmania, Report No 10 (2007); Consultation Committee for a Proposed WA Human Rights Act, A WA Human Rights Act, Final Report (2007). The Tasmanian and Western Australian initiatives have been suspended pending the Commonwealth consultation, slated for 2008. A further notable jurisdiction is New Zealand, which has had a Charter-like statute (the New Zealand Bill of Rights Act 1990 (NZ)) for close to two decades and recently adopted a uniform evidence legislation-like statute (the Evidence Act 2006 (NZ)).
8 Charter, ss 28(3), 30, 32(1), 38(1); cf s 36(2) referring to whether a statute “cannot be interpreted consistently with a human right” (emphasis added).
9 Charter, s 7(1).
10 Charter, ss 8-27; cf International Covenant on Civil and Political Rights (1966) 999 UNTS 171 (ICCPR). All references to treaty articles are to this convention, unless otherwise specified.
11 Charter, s 7(2).
The law of evidence’s scope is much narrower; it is a body of rules and practices about how facts are found by courts and similar bodies. The rules of evidence regulate courtroom process, both physical (people speaking, documents being read and items being displayed) and mental (inferences drawn and conclusions reached by judges and other decision-makers.) Other parts of the law of evidence regulate some non-courtroom matters that can impinge on these things. The main aim of evidence law is to promote accuracy in legally significant fact-finding. However, parts of evidence law promote other goals in addition to or even instead of that primary goal.12

Although most of the Charter’s rights are about broad aspects of human existence and society, several of them are largely concerned with the legal system. At the very top of the Charter’s list of human rights is a right to the law itself or, at least, “recognition as a person before the law” and “equal protection of the law”.13 The same provision also adds a right to “effective protection” (presumably including the correct application of protective laws) albeit only “against discrimination”.14 More importantly, the last seven sections are devoted to legal process.

The core provision, s 24(1), sets out a right to have a criminal charge or civil proceeding – ie the balance (at least) of litigated matters – “decided by a competent, independent and impartial court or tribunal after a fair and public hearing” (emphasis added). By requiring that criminal charges and civil proceedings be decided by a “court or tribunal” (as opposed to, say, a government minister or a community forum), this human right brings all such decisions within the potential domain of evidence law.15 Moreover, s 24(1) goes beyond a mere right to have a decision made by such a body. It also grants a right to a particular sort of decision; one with conditions whose obvious purpose is to increase the chance that the decision will be correct, including factually correct.16

Victorian evidence law has inherited a tradition that posits that accurate fact-finding can be largely achieved through a “rational model of adjudication”.17 The model has been previously described as comprising a set of four principles:18
• fact-finding should be rational;
• irrational fact-finding should be discouraged;
• relevant information should be available to the court or tribunal; and
• unreliable information should be treated with caution.

The first two of these principles are arguably supported by s 24(1)’s requirement that legal
decision-makers be “competent, independent and impartial”. A major part of Victorian evidence law is its antipathy towards potentially “prejudicial” evidence, such as shocking images or information about a party’s moral character, which might cause the decision-maker to become less competent in its

12 See generally Gans J and Palmer A, Australian Principles of Evidence (2nd ed, Cavendish Publishing, 2004) Ch 1.
13 Charter, s 8(1) and (3).
14 Charter, s 8(3).
15 Compare s 4 of the Evidence Bill 2008 (Vic), making the legislation applicable in “all proceedings” in various courts,
including bail proceeding, interlocutory proceedings, matters in chambers and (in some circumstances) sentencing decisions. On the application of the rules of evidence in tribunals, see Heydon J, Cross on Evidence (7th ed, LexisNexis, 2004) at [1050]-[1070].
16 See Nisuke Ando’s opinion in Richards v Jamaica (United Nations Human Rights Committee, Communication No 535/1993, 31 March 1997) Annexure A: “the purpose of a criminal trial is to ascertain what actually took place in the case at issue, that is, to find ‘true facts’ of the case, on which conviction and sentence should be based. Of course, ‘true facts’ as submitted by the defendant may differ from ‘true facts’ as submitted by the prosecution, and ... various procedural guarantees exist to secure a ‘fair trial’.”
17 Twining W, Theories of Evidence: Bentham and Wigmore (Weidenfeld & Nicholson, 1985).
18 Gans and Palmer, n 12, pp 2-8.
fact-finding role or to become partial to one side.19 Moreover, the law on opinion evidence aims to ensure that decision-makers do not become overly dependent on others’ views, notably experts who may be wrong or biased.20

However, evidence law’s goal of accurate fact-finding is not identical to s 24(1)’s right to a sound decision-maker, because a right to a decision with particular characteristics is not the same as the goal of correct decision-making.21 An example of the difference is the High Court’s decision in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461. The police charged Dieter Pfennig, apparently the last person to speak with a boy before he went missing, with the boy’s kidnapping and murder. The question for the High Court was whether Pfennig’s jury should have been told that Pfennig had later kidnapped and raped another boy pursuant to a desire that he admitted he had felt for some time. McHugh J noted that evidence of bad character is often kept from the jury “because it might cause a jury to be biased”.22 He observed that, after hearing about Pfennig’s other crime and his disposition, “it would require a superhuman effort by the jury” not to come to regard Pfennig as “depraved”.23 Nevertheless, the court upheld Pfennig’s conviction after finding that it didn’t matter if Pfennig’s jury reasoned irrationally because there was “no reasonable view” of the evidence consistent with Pfennig’s
innocence.24 By thus permitting Pfennig’s charge to be decided by a partial court, the High Court allowed a course of action that, had the Charter been applicable, would have breached Pfennig’s s 24(1) right to a decision by an “impartial court”.25

Section 24(1)’s express requirements also fall short of the rationalist tradition of fact-finding in
some respects. There is no express human right that decisions be made by an informed court or tribunal, ie one that is aware of all relevant information. Decisions must usually follow a “public hearing”, but that condition is directed to informing the public, not the court.26 Nor does s 24(1) require that the court or tribunal be cautious, eg about unreliable information. Section 25(2) of the Charter mandates specific processes that allow new information and bad information to be exposed: time to prepare; legal assistance; and calling and examining witnesses. However, evidence law’s commitment to these trial procedures is much more comprehensive than the express words of s 25. Not merely defence lawyers, but also prosecutors, judges and (in the giving of cautions) police are

19 See Gans and Palmer, n 12, pp 144-148; cf Palmer A, “The Scope of the Similar Fact Rule” [1994] AdelLawRw 4; (1994) 16 Adel LR 161
at 169-172, distinguishing “reasoning prejudice” and “moral prejudice”. For applications of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 213 UNTS 221 equivalent to s 24(1) to jurors potentially biased by pre-trial publicity, see Montgomery v HM Advocate [2003] 1 AC 641.
20 See generally Gans and Palmer, n 12, pp 228, 244. For a holding that a statutory provision requiring a court to comply with the opinions of an expert committee is a disproportionate intrusion into the presumption of innocence, see Hansen v The Queen [2007] NZSC 7; [2007] 3 NZLR 1 at [278]- [279].
21 See B d B v The Netherlands, (United Nations Human Rights Committee, Communication No 273/1989, 30 March 1989) at [6.4], observing that the ICCPR equivalent to s 24(1) “cannot be interpreted as guaranteeing ... absences of error on the part of the competent tribunal”.
22 Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 513.
23 Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 513.
24 Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 490.
25 Compare Mathias D, “Probative Value, Illegitimate Prejudice and the Accused’s Right to a Fair Trial” (2005) 29 Crim LJ 8.
26 Public awareness might bring relevant information to light, eg when a public trial in Queensland in 2003 of an alleged serial killer caused one of his alleged murder victims to emerge from hiding: see R v Fraser [2004] QCA 92; [2004] 2 Qd R 544 at [2].
co-opted to the process of gathering relevant evidence and avoiding potential dangers.27 Moreover, court processes must permit full scrutiny, not only of witnesses, but also documents, real evidence and demonstrations.28

Processes of this sort are likely to flow from s 24(1)’s broadest requirement – one considered
sufficiently important that it forms the provision’s title – that decisions on criminal charges and civil proceedings can only come after a “fair hearing”. A hearing lacking in either relevant information or due caution about unreliable information is one that is also, at least arguably, an unfair hearing.29 However, s 24(1)’s right to a fair hearing is still narrower than evidence law’s commitment to correct decision-making in one fundamental respect: the Charter’s right is only given to parties to civil proceedings and to criminal defendants. By contrast, evidence law’s goal of correct decision-making is for everyone’s benefit or, more precisely, everyone who is factually on the right side of the law.30

Limiting the right to a fair hearing in civil proceedings to parties to those proceedings recognises only the interests promoted by the adversarial system of justice, but the substantive law enforced by the civil courts is often aimed at promoting others’ interests too. Indeed, in cases involving children, the substantive law has long upheld the principle that the best interests of the child are paramount, even when the proceedings are between others, such as the child’s parents. However, in Northern Territory v GPAO (1999) 196 CLR 553, the High Court held that the paramountcy provisions of the Family Law Act 1975 (Cth) do not apply to “anterior” rules used to establish what facts a court considers, including State and Territory provisions on discovery that are “picked up” in Family Court proceedings.31 As Kirby J pointed out in a vigorous dissent from this ruling, this approach could produce incorrect factual findings, eg if a court made an interlocutory ruling in a parenting matter
based on the fact that one parent was suspected of abuse, without access to files that revealed the reliability of the basis for that suspicion. Such wrong fact-finding, in turn, creates “an obvious risk that a significant injustice would have been done, not only to the parents, but to the child”, thus failing to accord children the rights due to them under international conventions.32 Section 24(1), by failing to recognise the interests of non-parties to a fair hearing, leaves the Charter’s promotion of their interests to its substantive, rather than procedural, rights provisions.33

27 See generally Gans and Palmer, n 12, pp 339-342, 344-353; cf Peart v Jamaica (United Nations Human Rights Committee, Communication Nos 464/1991 and 482/1991, 19 July 1995) at [11.5], holding that a failure to provide a defendant with a prior statement made by the prosecution’s sole eyewitness contradicting that witness’s trial testimony, “seriously obstructed the defence in its cross-examination of the witness, thereby precluding a fair trial of the defendants” in breach of the ICCPR equivalent to s 25(2)(g) of the Charter.
28 See generally Gans and Palmer, n 12, Chs 5-6; cf Fuenzalida v Ecuador (United Nations Human Rights Committee, Communication No 480/1991, 12 July 1996) at [9.5], holding that a court’s failure to order the examination of the defendant’s blood and semen in a rape case where the defendant disputed evidence of samples compulsorily taken from him violated the ICCPR equivalents to s 25(2)(g) and (4) of the Charter.
29 See Wright v Jamaica (United Nations Human Rights Committee, Communication No 349/1989, 27 July 1992) at [8.3], holding that a judge’s failure in a capital case to bring to the jury’s attention that the defendant was in custody at the unchallenged time when the victim died “must ... be deemed a denial of justice and as such constitutes a violation of” the ICCPR equivalent to s 24(1) of the Charter; cf Rowe v United Kingdom [2000] ECHR 91; (2000) 30 EHRR 1 at [60]; R v A (No 2) [2002] 1 AC 45; R v Mirza [2004] UKHL 2; [2004] 1 AC 1118; R v Le (unreported, ACT Sup Ct, Connolly J, SCC No 181, 13 August 2004); Pappas v Noble [2006] ACTSC 39; (2006) 199 FLR 116 at [14].
30 McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468: “Fairness involves the even-handed submission of the issues of fact for consideration by the jury as constitutional arbiters of fact” (Brennan J) and “a fair trial is one which is fair to both sides” (Dawson J); cf R v MSK [2004] NSWCCA 308; (2004) 61 NSWLR 204 at [70]; R v Handy (2002) 213 DLR (4th) 385 at [150].
31 At [65]-[73], [139], [198], [254]. See also Judiciary Act 1903 (Cth), s 79 and Community Welfare Act 1975 (NT), s 97; cf Child Wellbeing and Safety Act 2005 (Vic), s 40.
32 Northern Territory of Australia v GPAO (1999) 196 CLR 553 at [224]-[233] (emphasis added), citing Re Z (1996) 134 FLR 40 and referring to the United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3, Art 9, cl 2, which requires that, in any proceedings concerning a child’s potential separation from its parents, “all interested parties shall be given an opportunity to participate in the proceedings and make their views known” (emphasis added).
33 See, eg s 17 of the Charter, entitling families “to be protected by society and the State” and giving “[e]very child ... the right ... to such protection as is in his or her best interests”. Query whether, in the light of the majority view in Northern Territory v GPAO (1999) 196 CLR 553, these provisions are applicable to the “adjectival” aspects of legal proceedings.
The limited nature of s 24(1) is starkest in criminal proceedings, where the Charter gives just one person associated with such proceedings – the person facing criminal charges – the right to have the charges decided by a qualified decision-maker after a fair hearing. So, s 24(1) does not promote the interests of the many other people with a stake in the correct application of the criminal law, including victims, the state and the wider community.34 This matters where those interests diverge from the defendant’s, ie when a law or practice of Victorian evidence law is overly favourable to a defendant.

Such a criticism has long been made of common law rape trial processes, including recent criticisms of modern High Court jurisprudence on warnings about forensic disadvantage.35 In the abstract, laws that deserve such criticisms might be labelled “unfair”, however, it would be odd if that label rendered them incompatible with s 24(1)’s right for defendants to have charges decided following a fair hearing. The unfairness, if any, from rape trial procedures is one that favours rape defendants.36

It might be objected that criminal defendants, who face punishment and lack the State’s resources, need stronger rights than others with an interest in the outcome of legal proceedings. While that is undoubtedly correct – and is entirely reflected in the law of criminal evidence – it does not provide any reason not to protect the rights of others, relatively limited as they may be. Rights jurisprudence recognises that rights can conflict and the greater needs of criminal defendants will play a great role in striking a balance.37 Moreover, the Charter can – and indeed, does – specify that, at least for some processes, defendants have more rights than others and must not have less. Notably, only those facing criminal charges have “the right to be presumed innocent until proved guilty according to the law”.38 And the Charter guarantees defendants the right to call and examine their own witnesses “under the
same conditions as witnesses for the prosecution”.39

Unfortunately, in several instances, the Charter mistakes the superiority of the defendant’s claim to procedural protections with the exclusivity of that claim. Only defendants are guaranteed processes such as time to prepare, witness examination and review “by a higher court”.40 People seeking to enforce the civil law, including those seeking remedies that flow from the Charter, are not given express rights to these processes, arguably, even though they are no less necessary in civil cases to the goal of getting the facts right. Civil litigants must instead base their arguments solely on their s 24(1) right to a fair hearing.41 As already pointed out, in criminal cases, non-defendants, including prosecutors and victims of crime, cannot even do that.

The result is that flaws in procedural law that undermine the interests of non-parties in civil cases and non-defendants in criminal ones cannot be criticised as incompatible with the Charter’s rights that deal with legal process. Rather, any criticism must be based on more distant substantive rights that those proceedings aim to enforce, eg the right to “security of person” that underlies the criminalisation

34 Doorson v The Netherlands [1996] ECHR 14 at [70], noting the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 213 UNTS 221 equivalent to s 24(1) of the Charter “does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration”; cf Spigelman J, “The Truth Can Cost Too Much: The Principle of a Fair Trial” (2004) 78 ALJ 29 at 44, noting the interests of non-defendants in a criminal trial and stating that the terminology of “principle of a fair trial” is preferable to “right to a fair trial”.
35 R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241 at [117]- [118].
36 For an apparent instance of a lower court decision to the contrary of the argument put here, see Director of Public
Prosecutions v Cash [2007] IEHC 108 at [45]- [50] holding that a rule automatically excluding illegally obtained evidence is contrary to the accused’s right to a fair trial under the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 213 UNTS 221 equivalent to s 24(1) of the Charter, which was held to encompass “rights and obligations of the entire community”.
37 Doorson v The Netherlands [1996] ECHR 14 at [70].
38 Charter, s 25(1).
39 Charter, s 25(2)(h).
40 Charter, s 25(2) and (4).
41 Compare IP v Finland (United Nations Human Rights Committee, Communication No 450/1991, 26 July 1993), cited in Joseph S, Schultz J and Castan M, The International Covenant on Civil and Political Rights (Oxford University Press, 2000) p 331, that “the ICCPR does not guarantee a right of appeal in civil proceedings”.
of rape.42 The coverage of these rights may not be as wide as Victoria’s criminal and civil law. The Charter’s drafters deliberately omitted a number of candidate rights from the International Covenant on Economic, Social and Cultural Rights, so some people with an interest in enforcing parts of the criminal law associated with those omitted rights (or no rights at all) will have no recourse under the Charter.43 While there may be sound political reasons to not provide legal protection for all human rights, or to deny rights to some specific groups (eg corporations), there does not appear to be any reason to give only a limited set of people a right to the correct enforcement of laws that Victoria’s Parliament has chosen to adopt.

The limited nature of s 24(1) and associated provisions of the Charter can mostly be sourced to wording of the ICCPR.44 However, the equivalent provision of the Human Rights Act 2004 (ACT) was drafted in a way that appears to recognise the potential interest of everyone in proper decision-making processes:45

A person has a right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

A broader way of putting this fundamental point, consonant with the primary goal of the law of
evidence, would be to add the following right to the Charter’s list: every person has the right to have the laws of Victoria applied correctly.46

INTRUSIVE FACT-FINDING: THE RIGHT TO BE LEFT

During the 1920s, ex-police officer Roy Olmstead was one of many Americans who made enormous amounts of money because he was prepared to break the law on prohibition. His former colleagues gathered evidence of his bootlegging without breaking any law themselves because Olmstead negotiated sales of alcohol by telephone, which the police tapped outside of his property. In 1928, a majority of the United States Supreme Court held that the police’s conduct did not violate the Fourth Amendment to the United States Constitution, because nothing had been searched or seized.47 The case of Olmstead v United States [1928] USSC 133; 277 US 438 (1928) is now most famous for the dissent by Louis Brandeis who, with Oliver Wendell Holmes agreeing, held that the Fourth Amendment protected more than just physical privacy:

The makers of our Constitution undertook to secure conditions favourable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things.

42 Charter, s 21 (short title), though the phrase “of person” does not appear in the actual provision. For an example of a similar argument, see X v Netherlands [1985] ECHR 4 at [28]- [30], where a rule barring rape prosecutions unless the alleged victim personally makes a complaint was held to violate a mentally handicapped person’s right to private life under s 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 213 UNTS 221.
43 Human Rights Consultation Committee, Rights, Responsibilities and Respect, Final Report (Department of Justice, 2005) pp 27-29.
44 See European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 213 UNTS 221, Art 14; cf Art 6.
45 Human Rights Act 2004 (ACT), s 21(1); but cf Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (2006) 206 FLR 328 at [25], holding that s 21(1) extends, in a planning dispute, to “the class of persons whose rights and obligations are affected by a development approval” but does not extend to objectors and third parties. See also Human Rights Consultation Committee, n 43, Draft Report, p 15 and the different, albeit narrower, approach taken in the New Zealand Bill of Rights Act 1990 (NZ), s 27 (right to justice).
46 The distinct question of when those people can seek a remedy for any breach of this right would depend on the Charter’s operative provisions in Pt 3.
47 Olmstead v United States [1928] USSC 133; 277 US 438 (1928). Olmstead was pardoned by FD Roosevelt in 1935. The precedent was overruled in Katz v United States 389 US 347 (1967), a year after Olmstead’s death. See McClary D, “Olmstead, Roy (1886-1966) – King of King County Bootleggers”, The Free Online Encyclopedia of Washington State History (2002), http://www.216.254.10.116/essays/output.cfm?file_id=4015 viewed 4 May 2007.

They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.48
Brandeis (not to mention Olmstead)49 would be well pleased with much of s 13(a) of Victoria’s
Charter, which provides:

A person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.

While the words “home or correspondence” cover the interests protected by the common law of trespass and constitutional protections against “search or seizure”, the word “privacy” is much broader.50

An example is the ubiquitous modern investigative technique of DNA identification. The common law only regulates this process at the point of contact between police officers and people’s bodies and the manner in which DNA evidence is dealt with in court. Statutes in Victoria now regulate both these matters and an additional area: the use, retention and disclosure of some DNA profiles on official databases.51 By contrast, s 13(a)’s ambit extends to aspects of the use of DNA identification that are presently largely unregulated in Victoria: mass DNA screenings; the gathering of people’s DNA from objects they have touched; the use and retention of victims’ DNA profiles on DNA databases; the off-database storage of DNA profiles; and the detection of links between an unsolved crime and the close blood relatives of a person who has been DNA sampled.52

Section 13(a), like the ICCPR provision it is drawn from, does not protect against all interferences in privacy, but rather only unlawful or arbitrary interferences.53 As interpreted by the United Nations Human Rights Committee, the ban on unlawful interferences includes conduct governed by legislation that fails to:

specify in detail the precise circumstances in which such interferences may be permitted. A decision to make use of such authorized interference must be made only by the authority designated under the law, and on a case-by-case basis.54

If s 13(a) is interpreted in this way, then current or proposed legislative provisions authorising
blanket collection of DNA profiles from offenders or suspects, or giving broad authority to police or database authorities to collect, match or transfer DNA profiles, may be incompatible with it. The further ban on arbitrary interferences might capture statutes that permit DNA profiles taken from suspects to be retained permanently, matched to all other DNA profiles, and transferred to interstate and overseas databases.55

48 Olmstead v United States [1928] USSC 133; 277 US 438 at 478 (1928).
49 Compare United Nations Human Rights Committee, Concluding Observations of the Human Rights Committee: Russian Federation (1995) at [19] noting concerns “that the mechanisms to intrude into private telephone communication continue to exist, without clear legislation setting out the conditions of legitimate interferences with privacy and safeguards against unlawful interferences”. See also United Nations Human Rights Committee, General Comment No 16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (Art 17) (1988) at [8] holding that “[s]urveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-trapping and recording of conversations should be prohibited”.
50 See also Charter, s 13(b)’s “right” of a person “not to have his or her reputation unlawfully attacked”.
51 Crimes Act 1958 (Vic), Pt 3, Div 1, Subdiv 30A, ss 464R-464ZL.
52 Gans J, “DNA Identification, Privacy and the Irrelevance of Australian Law” (2007) 3 Priv LB 110. See generally United Nations Human Rights Committee, n 49 (1988) at [10]; Van der Velden v Netherlands (European Court of Human Rights, Third Section, Application No 29514/05, 7 December 2006); cf Re Attorney-General’s Reference (No 3 of 1999) [2001] 2 AC 91; R (on the application of S) v Chief Constable of South Yorkshire Police [2004] UKHL 39; [2004] 1 WLR 2196 (application to the European Court of Human Rights declared admissible on 16 January 2007: S v United Kingdom [2007] ECHR 110).
53 Compare Art 17 of the ICCPR but note the absence in s 13(a) of the Charter of Art 17.2’s requirement that: “Everyone has the right to the protection of the law against such interference or attacks.”
54 United Nations Human Rights Committee, n 49 (1988) at [8].
55 See, eg the Criminal Law (Forensic Procedures) Act 2007 (SA). A significant case on this issue is presently before the European Court of Human Rights: S v United Kingdom [2007] EHCR 110.
In contrast to DNA profiling and other aspects of criminal investigations that can generate
evidence that reaches the courtroom, the actual use of evidence in court proceedings is closely regulated and subject to case-by-case decision-making by the presiding judge, so any interferences in privacy in accordance with the law of evidence will rarely by unlawful.56 This limits s 13(a)’s main operation in court proceedings to its condemnation of arbitrary interferences in privacy and related interests. As already observed, while much of evidence law is aimed at maximising the chance of correct fact-finding, some parts of evidence law have the opposite effect.57 The law provides privileges and immunities to protected relationships and interests, including legal communications and negotiations, confidential relationships and information whose disclosure would harm the public interest.58 It also limits the impact of trial processes on ordinary people by sometimes barring the exploration of peripheral matters in court.59 However, while s 13(a)’s concepts of “privacy” and “correspondence” encompass many of these interests, its bar on “arbitrarily interfer[ing]” with these things is narrower than the protections that evidence law provides.60

A notorious example is the questioning of witnesses about their sexual history, particularly in rape trials. In the past, the courts permitted routine cross-examinations about a witness’s acts, experiences, propensities and reputation on the theory that these things would shed light on the events in dispute or even the witness’s credibility. While these practices are now discredited, there is continuing controversy about whether or not the present law – which varies considerably from jurisdiction to jurisdiction across Australia – strikes the right balance between the witness’s privacy and the defendant’s right to a fair trial.61 At stake is not whether a rape complainant’s privacy has been “arbitrarily interfered with” – which s 13(a) opposes62 – but rather, whether non-arbitrary, gross intrusions are permissible.

The difference is illustrated by a recent case in the Northern Territory. A man facing charges that he indecently photographed a woman while she was asleep sought to show the jury a video that he claimed he and the complainant had watched as a prelude to consensual photographing. The trial judge barred the defendant from adducing evidence about the video because it was an explicit film of the complainant having sex with her boyfriend. However, the Court of Criminal Appeal held that, so long as the defendant testified that he and the complainant had watched the video together, the jury must see it so that the jury could assess the defendant’s claim that the photos were prompted by specific scenes in the video.63 If these rulings were the subject of Charter analysis, then obviously the defendant’s rights under s 24(1) would feature in the arguments in favour of admissibility of the video;64 however, s 13(a) could not be used to argue against admissibility, as the interference in the

56 Likewise, the right of a person in s 13(b) of the Charter “not to have his or her reputation unlawfully attacked” (emphasis added) does not bar questions or evidence whose use is permitted by evidence law, eg Crimes Act 1958 (Vic), s 37.
57 Pearse v Pearse [1846] EngR 1195; (1846) 63 ER 950 at 957: “Truth, like all other good things, may be loved unwisely – may be pursued too keenly – may cost too much.”
58 See Gans and Palmer, n 12, Ch 7.
59 See Gans and Palmer, n 12, Chs 13-14.
60 See United Nations Human Rights Committee, n 49 (1988) at [8], holding that the ICCPR equivalent to s 13(a) of the Charter requires that “[s]earches of a person’s home should be restricted to a search for necessary evidence and should not be allowed to amount to harassment” (emphasis added).
61 See Gans and Palmer, n 12, pp 295-302.
62 See United Nations Human Rights Committee, General Comment No 28: Equality of Rights Between Men and Women (Art 3) (2000) at [20], noting that an “interference arises when the sexual life of a woman is taken into consideration to decide the extent of her legal rights and protections, including protection against rape”.
63 AM v The Queen [2006] NTCCA 18; (2006) 18 NTLR 110 at [66]- [75].
64 As discussed earlier, s 24(1) of the Charter could not be used to argue that the admission of the video rendered the trial unfair to the complainant, prosecution or the wider public, although those interests might be taken into account in assessing the defendant’s claim.
complainant’s privacy, despite being so massive, was not arbitrary.65 Instead, the complainant’s (not to mention the prosecutor’s, the jury’s and the wider public’s) interest in not having the complainant suffer a much greater intrusion into her privacy than the one the defendant was accused of perpetrating66 could only be promoted through more tangential Charter rights, including s 10, whose ban on torture includes a right not to be “treated ... in a cruel, inhuman or degrading way”.67

A more fundamental example of the significance of the limit on s 13(a) is the privilege against
self-incrimination, one of the core principles of Victoria’s evidence law and practice. The privilege against self-incrimination protects the privacy of people’s thoughts and memories about their own wrong conduct.68 Importantly, the privilege applies even when – indeed, especially when – officials think this information is relevant to a criminal investigation or proceeding. So, s 13(a)’s restriction to arbitrary interferences means that its protection ceases precisely in those circumstances when the privilege against self-incrimination matters most.69
The ICCPR, which had to straddle a number of different legal systems,70 mentions neither the
privilege nor the related right to silence, so neither does the Charter.71 A number of other Charter rights, like s 13(a), touch on, but fall short of protecting, the privilege against self-incrimination:

• Section 10 bars the use of “torture”, “inhuman” or “degrading” treatment and non-consensual “experimentation or treatment”. However, the privilege against self-incrimination is aimed at much more subtle pressures to divulge incriminating thoughts including oppressive conduct, certain forms of trickery, drawing inferences from some conduct and failing to caution or provide legal assistance.72
• Section 14 grants “freedom of thought, conscience, religion or belief”, while s 15(1) grants a “right to hold an opinion about interference”, but these are directed to the freedom to think as one chooses, rather than keeping those thoughts to oneself. While s 15(2)’s grant of “freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kind” covers the right not to speak, this freedom is subject to an express limitation “for the protection of national security, public order, public health or public morality”, which covers the precise sort of questioning that the common law privilege is meant to protect against.
• Section 22(1) provides that people “deprived of liberty must be treated with humanity” and “dignity”. This provides protection beyond s 10, but still falls short of the protection provided by the privilege.73 Notably, it only applies to people in custody. Many of the notorious instances where the privilege against self-incrimination has been breached involve people who were consensually in the company of the police or were the subject of a covert operation.
  

65 Compare Nowak M, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd ed, NP Engel, 2005) p 383, claiming that “arbitrary” means that a law must be reviewed as to “whether it was reasonable (proportional) in relation to the purpose to be achieved”.
66 Indeed, the video was watched by the Court of Criminal Appeal, prompting the Chief Justice to state in his reasons that the video was “distasteful in the extreme” (at [55]) and to describe aspects of it (at [56]).
67 Compare Smith v United Kingdom [1999] ECHR 72 at [117]- [123] holding that intimate questioning of soldiers about their sexual orientation, while “undoubtedly distressing and humiliating”, did not reach “the minimum level of severity which would bring it within the scope of Art 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 213 UNTS 221.”
68 See R v Director of Serious Fraud Offıce; Ex parte Smith [1993] AC 1 at 30-31.
69 Query whether modern legislation regulating custodial interrogations, eg Crimes Act 1958 (Vic), ss 464-464J, means that the constraint on “unlawful” interferences in s 13(a) of the Charter is also inapplicable at this stage.
70 See Nowak, n 65, pp 306-307 on the “problématique of detailed procedural guarantees in international human rights treaties”.
71 Contrast Canadian Charter of Rights and Freedoms, Pt I of the Constitution Act 1982 (enacted as Sch B to the Canada Act 1982 (UK)), s 13; Constitution of the Republic of South Africa 1996, s 35(1)(a)-(c) and (3)(h)-(j).
72 Compare the rejection of a proposal to forbid “a confession from being obtained by a promise or reward or immunity” fromthe draft of the ICCPR: Nowak, n 65, p 345.
73 Compare New Zealand Bill of Rights Act 1990 (NZ), s 23(4), which expressly gives detainees “the right to refrain from making any statement and to be informed of that right”.
• Section 25(2)(k) provides “a person charged with a criminal offence” with a guarantee

“not to be compelled to testify against himself or herself or to confess guilt”. This certainly accords with the privilege against self-incrimination,74 but its wording appears limited to the application of the privilege during the defendant’s own trial.75 Even if it were read more broadly to cover interrogation by the police,76 it is nevertheless restricted to events after a person is charged, whereas the key period when the privilege against self-incrimination is at risk in practice is the time between suspicion and charge.77

So, the abovementioned sections fall short of protecting the privilege against self-incrimination in many cases, ranging from mundane tricks or pushiness during a consensual policing interview to complex undercover operations.

But what about the catch-all protection for defendants’ rights in s 24(1)? Comparative judgments on international human rights regard the privilege against self-incrimination as a core characteristic of a “fair hearing”.78 Nevertheless, this provision’s promotion of the privilege is limited in three respects. First, as discussed above, s 24(1) only applies to criminal defendants and parties to a civil proceeding, so that it would not protect other witnesses called at those proceedings.79 Secondly, s 24(1) comes into play only if the things a person says in breach of the privilege are adduced at a later trial of a criminal charge or during a civil proceeding, as opposed to being used for other purposes (which may in turn lead to proceedings that rely on other evidence.)80 Thirdly, s 24(1) only applies to breaches of the privilege that have an actual impact on the fairness of a trial.81 In 1998, the High Court of Australia held that police misconduct in gaining an admission could only render a trial unfair if there was either a risk that the admission was unreliable or if the way the admission was obtained left the defendant “disadvantaged in the conduct of his [or her] defence”.82

74 Nowak, n 65, p 345: “The term ‘to be compelled’ (‘tre forcée’) refers to various forms of direct or indirect physical or
psychological pressure”, but cf Lopez v Spain (United Nations Human Rights Committee, Communication No 777/1997, 25 November 1999) at [6.4] holding that the ICCPR equivalent to s 25(g) of the Charter does not prevent the owner of a vehicle from being prosecuted for refusal to cooperate with authorities in identifying the driver of a speeding vehicle.
75 Nowak, n 65, p 345, asserting that Art 17.3(g) of the ICCPR “relates only to the accused. Witnesses, on the other hand, may not refuse to testify”.
76 See United Nations Human Rights Committee, General Comment No 13: Equality Before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law (Art 14) (1984) at [14]-[15], noting a link between the ICCPR equivalent to s 25(2)(k) of the Charter and the rights not to be tortured and to humanity while detained and holding that “[i]n order to safeguard the rights of the accused under”, the ICCPR equivalents to s 24(1) and s 25(2), “judges should have the authority of violations of the rights of the accused during any stage of the prosecution” (emphasis added); cf the Constitution of the United States (1789), Fifth Amendment that “[n]o person ... shall be compelled in any criminal case to be a witness against himself”, which the Supreme Court held in Miranda v Arizona [1966] USSC 143; 384 US 436 at 460-466 (1966) extended to custodial interrogations.
77 The same point could be made about s 25(1) of the Charter, which gives a right to be presumed innocent to “[a] person charged with a criminal offence”, but cf Nowak, n 65, pp 318-319 asserting that a “charge” under Art 17 of the ICCPR commences “on the date on which State activities substantially affect the situation of a person concerned. This is usually the first official notification of a specific accusation, but in certain cases may be as early as arrest” (citations omitted).
78 Funke v France [1993] ECHR 7 at [44]; Saunders v United Kingdom [1996] ECHR 65 at [68]; Serves v France [1997] ECHR 82 at [46]; JB v Switzerland [2001] ECHR 234 at [64]; cf R v Hertfordshire County Council; Ex parte Green Environmental Industries Ltd [2000] UKHL 68; [2000] 2 AC 483; Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681.
79 Compare Gans and Palmer, n 12, pp 105-106.
80 For example, the order for a re-trial of alleged terrorism offender Joseph “Jihad” Thomas was founded on a television interview he gave after his first torture-tainted trial: R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512.
81 Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656 at 666: “[T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him ... Unfairness, in this sense, is concerned with the accused’s right to a fair trial.”
82 R v Swaffıeld (1998) 192 CLR 159 at [70]-[92]. Other factual issues that might engage the presumption of innocence, including coercion and trickery by the police, were to be addressed through other requirements of evidence law, including the common law requirement of voluntariness and the public policy discretion. See Palmer A, “Police Deception, the Right to Silence and the Discretionary Exclusion of Confessions” (1998) 22 Crim LJ 325.
A practical example of the gap in the Charter, recently before the High Court, is a modern
technique used by Victorian police to investigate cold cases where suspects have refused to be interviewed. The scheme involves the suspects being invited by undercover operatives to join fake gangs, with membership conditioned on confessing all past crimes to a “crime boss” (whose cross-examination of the suspect is, of course, covertly recorded). Typically, confessions would only emerge through extensive contrived scenarios, ranging from the initial contact to staged visits by overt police officers to a promise that corrupt police officers will protect the confessors from punishment.83 A majority of the High Court held that Victoria’s law of evidence permits the admission of confessions obtained through these schemes.84 Would the Charter’s version of the “right to be left alone” protect Victorians (including Victorian criminals) from the “crime boss scenario”?

The answer is almost certainly no because of the gaps in the Charter’s rights outlined above. The Victorian police’s complex ruse is obviously designed to overcome the “privacy” of the defendant’s own knowledge about committing a crime; however, the carefully targeted nature of these expensive operations means that any intrusion is anything but arbitrary under s 13(a).85 The tactics used by the police fall far short of torture or other degrading treatment and intrude neither on suspects’ freedom to think or talk or their liberty (prior to any trial). They also occur before (sometimes immediately before) suspects are charged, rending s 25(2)(k) inapplicable. The only right that is arguably infringed is s 24(1) and – if the High Court’s approach to fairness is applied – it arises only to the extent that the police’s tactics might produce unreliable admissions or leave the defendants at a forensic disadvantage
when prosecuted. The Charter provides no basis for arguing that any other aspect of Victorian law, to the extent it falls short of protecting the privilege against self-incrimination, is incompatible with human rights.86

As in the case of the Charter’s partial promotion of the goal of correct fact-finding, the failure of the Charter to comprehensively promote evidence law’s protections for privacy flows directly from the limitations of the ICCPR. While it might seem that those limitations are an answer to the lack of consonance between the rights protected by the Charter and the rights protected by Victorian evidence law, the Human Rights Consultation Committee only recommended that the ICCPR rights be a “starting point” for the rights to be promoted in the Charter.87 While its report mainly favoured changes to modernise the rights’ language and to ensure consistency with existing Victorian laws, it also extended or added rights in some instances. Notably, it added free assistance and tools to people with communication difficulties to the list of minimum guarantees for criminal proceedings to “reflect
the fact” that such assistance is both necessary and an entitlement.88

In that light, it is unclear why the committee did not take a similar step by adding broad rights
against self-incrimination and to silence rights that mirror those recognised by Victoria’s common and statutory law of evidence. A more elegant solution would have been to simply broaden the Charter’s right to privacy to cover all interferences, rather than only arbitrary or unlawful ones.89 As will be discussed in the next section, appropriate limits on this right are supplied by the Charter’s general provision on the limitation of rights, rendering specific limitations in s 13(a) unnecessary. A simple

83 See, eg R v Tofilau [2003] VSC 188; (2003) 13 VR 1; Director of Public Prosecutions v Ghiller [2003] VSC 350; (2003) 151 A Crim R 148; R v Favata [2004] VSC 7; R v Clarke [2004] VSC 11; R v Marks [2004] VSC 476; (2004) 150 A Crim R 212.
84 Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396.
85 Whether the interference is “unlawful” would depend upon the adequacy of legislative and administrative supervision of the police’s operation; cf Crimes (Controlled Operations) Act 2004 (Vic).
86 This includes the arguments, accepted by the High Court, that an undercover police officer’s promise to corruptly prevent a person from being prosecuted is not grounds for the automatic exclusion of all the admissions as involuntary; and that the community would not be shocked by the police’s behaviour, given the results.
87 Human Rights Consultation Committee, n 43, Recommendation No 6.
88 Human Rights Consultation Committee, n 43, p 44.
89 Compare the view that the limitation to “arbitrary or unlawful interference” is “far too broad in terms of rule of law”,
rendering the ICCPR’s Art 17 “worthless”: Nowak, n 65, p 381, citing Guradze H, “Die Menschenrechtskonventionen der Verteinten Nationen vom 16 December 1966” (1971) 14 GYIL 242.
“right to privacy”90 would cover all the interests valued or threatened by evidence law, including the privilege against self-incrimination, giving all Victorians the benefit of Brandeis’s “most comprehensive of rights”.

PROTECTED FACT-FINDING: THE RIGHT TO WRONG

So far, this article has argued that the Charter’s list of human rights falls short of promoting the goals of evidence law. Purely from that perspective, the list would be improved through the addition of two simple rights: a right to the correct application of Victorian law and a right to be left alone, ie an unencumbered right to privacy. However, evidence law is by no means the sum of these two rights. Rather, the goals of accurate decision-making and protecting people’s privacy are often sacrificed to other significant interests, such as the courts’ own legitimacy and the public interest. Even in the absence of any such overriding interests, many of the rules of evidence fall short of these goals simply because pursuing them would make the justice system unworkable or too costly. Such compromises, familiar in all parts of the law, are essential to making evidence law both just and effective.91 In short, the goal of reforming evidence law consists, not merely of changing evidence law to better advance its
goals, but also of refining the law to better accommodate competing interests.

Compromise is a core element of the Charter too. Part 2’s first section regulates when the law can limit the rights it sets out.92 Section 7(2) provides that those limits must be “reasonable” and “demonstrably justified”. It also lists factors that must be taken “into account”:
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

If “goal of evidence law” was substituted for “right”, then this provision would describe how
evidence law deals with conflicts between its various goals (or other exigencies), or at least how it should.

The structure of much of evidence law consists of rules (eg relevant evidence is admissible) with exceptions (eg but not evidence about a witness’s credibility) and exceptions to exceptions (eg unless it is that witness’s prior conviction) and more exceptions (eg but not if the witness is the defendant) and still more (eg unless the defence attacks the character of a prosecution witness) and more (eg but not if a judge refuses leave).93 Every rule and exception represents a compromise between the goals of accuracy and privacy or between these goals and a further one (eg constraining the length of trials or a “tit for tat” idea of fairness.) However, not all these compromises are resolved by the present law in
a sound way.94 Rather, many of the current rules of evidence are a product, not of parsimonious balancing between competing priorities, but rather poorly-evidenced empirical claims, handed-down traditions, overdrawn rules and the prioritising of one goal at the expense of others.95

So, applying s 7(2) to every rule and every exception in evidence law has the potential to
significantly improve the law applied by Victoria’s courts and tribunals. Unfortunately, the ideal of a

90 Compare Constitution of the Republic of South Africa 1996, s 14
91 See Gans and Palmer, n 12, pp 8-11.
92 On the issue of the role s 7(2) plays in the Charter’s interpretation regime, see Allan J, “The Victorian Charter of Human Rights and Responsibilities: Exegesis and Criticism” [2006] MelbULawRw 28; (2006) 30 MULR 906 at 918-920; cf Hansen v The Queen [2007] NZSC 7; [2007] 3 NZLR 1.
93 See Gans and Palmer, n 12, pp 131-134, 305-307, 310-313, 399-401, 402, 403-405.
94 Compare Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at [51]- [53] (McHugh J); Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45
(Deane J dissenting).
95 See Harvey C, The Advocate’s Devil (Stevens, 1958) p 79: “Founded apparently on the propositions that all jurymen are deaf to reason, that all witnesses are presumptively liars and that all documents are presumptively forgeries, it has been added to, subtracted from and tinkered with for two centuries until it has become less of a structure than a pile of builders’ debris.”
healthy compromise between rights and competing interests in the field of evidence law is itself compromised by two features of the Charter: exceptions to particular rights to accommodate existing laws; and an exception to one of the Charter’s main operative provisions to accommodate the purposes of all laws.

The clearest example of the first concern is s 25(2)(g)’s right to examine witnesses:

(2) A person charged with a criminal offence is entitled without discrimination to the following

minimum guarantees –

...

(g) to examine, or have examined, witnesses against him or her, unless otherwise provided for by law; (emphasis added)

The addition of the words “unless otherwise provided by law”, which do not appear in the
equivalent article of the ICCPR, are explained in a brief part of the committee’s report that listed a grab bag of alterations to the ICCPR’s language. Of s 25(2)(g), the committee wrote:

The Committee considers that this qualification is necessary to ensure that the special rules in relation to the cross-examination of children or of victims of sexual assault would continue to apply.96

This explanation of the limitation on the right to examine witnesses is wrongheaded in many
respects:
• First, there is no risk that Victoria’s laws on examining rape victims and children will not
“continue to apply”. The Charter does not invalidate any laws.
• Secondly, mere inconsistency with s 25(2) or any other right in Pt 2 is not a problem in and of itself as s 7(2) permits lawmakers to pass laws that are reasonable and demonstrably justifiable limits on human rights. Victoria’s special laws on examinations of children and rape victims are the product of an extensive law reform process that ought to produce precisely the sort of limit that s 7(2) allows. Indeed, there are numerous comparative judgments upholding similar rules, like a bar on defendants personally examining rape complainants or the use of CCTV or pre-recorded interviews for child testimony.97
• Thirdly, if Victoria’s current laws cannot satisfy s 7(2) – ie they are not reasonable or
demonstrably justified – then why should they be preserved from such remedies as reading down or a declaration of inconsistent interpretation?
• Fourthly, if it was necessary to protect those laws from such consequences, then Parliament could enact an “override” that preserves selected Victorian laws from such consequences; however, unlike the limitation on s 25(2)(g), this requires specific parliamentary deliberation and scrutiny, “exceptional” circumstances and a five-year sunset clause.98 Moreover, if the committee’s intention was to prevent Victoria’s rules on examining children and rape victims from being criticised under the Charter, then it will not succeed; those rules can and will be challenged under the s 24(1) right to a decision following a fair hearing.

Worst of all, the committee’s exception is vastly overbroad. It is not limited to protections for
rape victims and children, but can cover as many witnesses (and as many aspects of their examination) as Parliament wants. The impact on evidence law’s values is especially painful, because the provision implements a basic right recognised by evidence law: the right to confrontation. That right guarantees that criminal defendants (and their lawyers) can hear what witnesses have to say and can then cross-examine them about their evidence. Evidence law’s most famous commitment to this right is the hearsay rule, although there are a number of exceptions to that rule (and, if the uniform evidence legislation was adopted in Victoria, there would be many more). The effect of the committee’s tinkering with the ICCPR right is to bar all of evidence law’s exceptions to the hearsay rule (present

96 Human Rights Consultation Committee, n 43, p 44.
97 For example, R v L (DO) (1993) 85 CCC (3d) 289; R v Levogiannis (1993) 85 CCC (3d) 327; K v Regional Magistrate (1996) 1 SACR 434; SN v Sweden [2002] ECHR 551; R v Camberwell Green Youth Court; Ex parte D [2005] 1 WLR 393; cf R v MSK [2004] NSWCCA 308; (2004) 61 NSWLR 204 at [40], [48]-[49].
98 Charter, s 31. Contrast s 48, exempting “any law applicable to abortion or child destruction”, which is clearly designed to preserve Victoria’s laws and is narrowly confined to particular ones.
and future)99 from analysis for their consonance with the minimum guarantees for criminal procedure in s 25 (and, if that is not bad enough, the government’s redraft also removes the ICCPR’s requirement that any exceptions apply equally to prosecution and defence.100)

To see just how unfortunate this is, consider the aborted trial at Guantanamo Bay of David Hicks, whose liberal rules of evidence are often cited as a reason why Victorians need a human rights regime.101 Section 25(2)(g)’s exemption would exclude from protection precisely the procedures in Hicks’s trial that attracted strongest criticism: the prosecution’s right to present evidence that was kept secret from the defendant on national security grounds; and the very broad hearsay rule exceptions.102 Allowing such procedures a free pass under s 25(2)’s guarantees of minimum standards for criminal proceedings is quite a high price to pay just to exempt Victoria’s sensible laws on examining rape victims and children from the unlikely possibility of adverse court decisions under those same provisions. The best that can be said for any of this is that defendants could still challenge all laws limiting their right to examine witnesses under s 24(1).

Section 25(2)(g) is a particularly egregious instance of a broader problem in the way the ICCPR’s provisions were incorporated into Victoria’s Charter. The ICCPR’s description of human rights is verbose and complex, because each right incorporates caveats limiting its operation. These caveats represent not merely the compromises that are inevitable when a multilateral treaty is drafted but also an outdated approach to human rights law, which regarded human rights as inalienable. This contrasts with contemporary rights documents, including the Charter, which wholeheartedly adopt the modern notion that nearly all rights can be properly limited to meet narrowly defined, proportionate objectives. The consultative committee was well aware of this difference and recommended that the ICCPR’s
caveats be “not included in the Charter as the committee considers that it is preferable to rely on a general limitation clause”, ie s 7(2). Unfortunately, the committee, in formulating its draft, failed to identify and excise many of those caveats (in addition to adding its own misguided ones). These include (relevantly to evidence law):
• as already noted, restricting the rights to “privacy, family, home or correspondence” to
non-arbitrary or non-lawful interferences;103
• restricting the protection on attacks on reputation to “unlawful” attacks;104
• limiting the “public hearing” requirement by allowing exclusion of the media or the public if a
non-Charter law permits;105

99 Query whether the limitation in s 25(2)(g) of the Charter should be read down (under the Charter’s interpretations regime) to existing Victorian laws, noting the Explanatory Memorandum’s statement that the limitation “is intended to make it clear that current rules in relation to the cross-examination of certain witnesses, such as children and victims of sexual assault, continue to apply” (emphasis added): Charter of Human Rights and Responsibilities Bill 2006 (Vic), Explanatory Memorandum, p 19.
100 See Art 14(e) of the ICCPR, but cf Nowak, n 65, p 342, asserting that this “restriction” only applies to the right to call and examine defence witnesses, not prosecution witnesses.
101 Burnside J, “It’s Time to Uphold Our Rights”, The Age (14 December 2006); cf the statement by the Chief Executive Officer of the Victorian Equal Opportunity and Human Rights Commission that “[t]he Victorian Charter of Human Rights and Responsibilities is a law that protects Victorians from the human rights abuses that David Hicks has been subjected to”, in Human Rights Conference Highlights Importance of Charter, Media Release, http://www.humanrightscommission.vic.gov.au/ news%20and%20events/media%20releases/2007/20070226.asp viewed 4 May 2007.
102 Military Commissions Act of 2006 (USA), inserting 10 USC 47A, §§ 949a(b)(2)(E) (hearsay evidence) and 949d(f)
(introduction of classified information).
103 Charter, s 13(a), but cf United Nations Human Rights Committee, n 49 (1988) at [8] holding that the bar on “unlawful” interferences in the ICCPR equivalent means that “relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted. A decision to make use of such authorized interference must be made only by the authority designated under the law, and on a case-by-case basis”. See also at [3] holding that the legislation must also “comply with the provisions, aims and objectives of the” ICCPR.
104 Charter, s 13(b).
105 Charter, s 24(2); contrast Human Rights Act 2004 (ACT), s 21(2).
• permitting non-publication of judgments if “the best interests of a child otherwise requires”;106
• limiting the defendant’s right to call witnesses to “the same conditions as witnesses for the
prosecution”; and107
• limiting the defendant’s right to appeal to review “in accordance with law”.108

Even putting aside any substantive objections to these limitations, they are objectionable as ad hoc duplications of the much more nuanced s 7(2).109 Their presence may reduce the chance that a court will perform the detailed analysis of the proper limits of a law that s 7(2) would otherwise demand. To this extent, opportunities for improvement of Victoria’s law of evidence will be neglected.

The second Charter-based barrier to a rights-compatible development of the law of evidence is its deference to the purpose of laws. The key operative provision applicable to Victoria’s laws is s 32(1), which requires that “all statutory provisions ... be interpreted in a way that is compatible with human rights”. However, this interpretative mandate has a significant gloss: the imperative to interpret statutes in this way only extends “[s]o far as it is possible to do so consistently with their purpose”. This gloss gives primacy not merely to laws in general, but to their purposes in particular. So, the purposes of a particular statutory provision on the law of evidence will trump all human rights, even those that generally advance the wider goals of evidence law.

An example of the constraining effect of this purposive limitation can be seen by considering how Queensland’s courts resolved an ambiguity in that State’s legislation authorising a mass DNA sampling of its prisoners. Legislation introduced in 2000 authorised the compulsory sampling of people “serving a term of imprisonment for an indictable offence”.110 However, the legislation’s application to people convicted of an indictable offence via a summary trial procedure was unclear, as a separate provision of Queensland’s Criminal Code deemed such people to be guilty of a simple offence.111 This ambiguity would seem to be a straightforward case for applying the common law rule to interpret statutes that interfere with rights narrowly, which in some ways operates analogously to the Charter’s s 32(1).112 However, the Court of Appeal found that the DNA sampling statute’s purpose was to establish a “comprehensive DNA database”, ie to gather as much DNA as possible.113 Applying Queensland’s interpretation statute, which mandates a purposive approach to interpretation above all

106 Charter, s 24(3); cf Gordon v Jamaica (United Nations Human Rights Committee, Communication No 237/1987,
5 November 1992) at [6.3]; contrast Human Rights Act 2004 (ACT), s 21(3).
107 Charter, s 25(2)(h).
108 Charter, s 25(4), but cf de Montejo v Colombia (United Nations Human Rights Committee, Communication No R15/64, 24 March 1982) at [10.4] holding that “the expression ‘according to law’ in” the ICCPR equivalent to s 25(4) of the Charter “is not intended to leave the very existence of the right of review to the discretion of the States parties, since the rights are those recognized by the Covenant, and not merely those recognized by domestic law. Rather, what is to be determined ‘according to law’ is the modalities by which the review by a higher tribunal is to be carried out”.
109 The right to privacy in s 13(a) of the Charter exemplifies this, because exactly the same right is partially enforced under a Commonwealth law (as it relates to adult sexual conduct): Human Rights (Sexual Conduct) Act 1994 (Cth), s 4. The Commonwealth statute, necessarily modelled on the ICCPR for its constitutional validity, contains the “arbitrary interference” limitation, but contains no further exception for reasonable or demonstrably justified limits. So, Victoria’s Charter actually provides a narrower right to privacy for sexual conduct than the Commonwealth statute, even though both are purportedly implementations of the same international provision. Query, however, the effect of Australia’s reservation to the ICCPR’s privacy provision for “laws which ... are necessary in a democratic society in the interests of national security, public safety, the economic well being of the country, the protection of public health or morals or the protection of the rights and freedoms of others” (extracted from Nowak, n 65, p 935), but cf the Commonwealth statute’s lack of reference to any reservations and its reference to the ICCPR in Sch 2 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), rather than the definition of “Covenant” in that Act, which restricts the reference to the Covenant as it “applies in relation to Australia”.
110 Police Powers and Responsibilities Act 2000 (Qld), s 311(1).
111 Criminal Code (Qld), s 659.
112 See Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427.
113 Brogden v Commissioner of the Police Service [2001] QCA 185; (2001) 122 A Crim R 394 at [11].
other interpretative rules,114 the court held that the common law presumption was displaced and that the broader interpretation of the DNA sampling statute should be preferred.115

A straightforward instance where s 32(1) might have been thought to have a role to play in
Victoria’s evidence law in the future is the model evidence legislation’s exception to its hearsay rule for statements made “when or shortly after” the events they describe.116 The obvious question that this provision raises is: how long is “shortly after”? The NSW Court of Criminal Appeal, in interpreting these words, has permitted the prosecution to adduce evidence of a person’s statement about being assaulted a day after the incident (and shortly before he fell into a fatal coma);117 in another case, a trial judge held that, in the right circumstances, the words “shortly after” can encompass a two-week gap between event and statement.118 Once this provision is enacted in Victoria, s 32(1) would, at first blush, appear to demand a narrower reading given the impact of the admission of such hearsay evidence on a defendant’s right to a fair hearing.119 But, would such a narrower reading be consistent with the purpose of the model evidence legislation, which was a comprehensive attempt to modernise and liberalise the admission of hearsay evidence?120 Arguably, a narrower reading that was closer to the old common law requirement of strict or near contemporaneity would be inconsistent with the statute’s purpose of freeing the courts from the restrictions of the doctrine of res gestae.121

The purposive constraint on s 32(1) has its origins in the often-criticised early behaviour of the
United Kingdom courts when interpreting legislation under their Human Rights Act 1998 (UK) (where an analogous provision requires that statutes be “read and given effect” compatibility with human rights and omits the gloss about purpose).122 Interestingly, the judgment that has attracted the strongest condemnation is an evidence law decision.123 In R v A (No 2) [2002] 1 AC 45, the House of Lords considered whether England’s then strict rape shield law was compatible with the fair trial provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms.124 The complainant alleged that A raped her beside the Thames as they drunkenly walked to a hospital to see the complainant’s lover. The rape shield law barred A, who claimed that the sex was consensual, from

114 Acts Interpretation Act 1954 (Qld), s 14A(1). This provision, requiring a court to prefer the interpretation that “best”
achieves the statute’s purpose, is less flexible than the [probably pedantic of me, and I note the earlier footnote saying all references to sections are to the Charter, but is it worth clarifying that s 32(1) is the charter here?The statement could, albeit a bit oddly, here refer to the AIA (QLD)] requirement of consistency in s 32(1) of the Charter with the statute’s purpose. Query, however, whether a narrow construction of the DNA database statute would be “consistent with” the purpose of achieving a “comprehensive” DNA database.
115 Brogden v Commissioner of the Police Service [2001] QCA 185; (2001) 122 A Crim R 394 at [20] (de Jersey CJ with MacKenzie J agreeing at [35]). The High Court granted special leave to the prisoners to appeal this decision; however, the appeal was dismissed by consent after the Queensland Parliament amended its DNA legislation to resolve the ambiguity in favour of the broader reading: Transcript of Proceedings, Brogden v Commissioner of the Police Service (High Court of Australia, No B24/2002, 24 June 2002); cf Police Powers and Responsibilities (DNA) Amendment Act 2002 (Qld), s 3.
116 See Evidence Act 1995 (NSW), s 65(2)(b).
117 Harris v The Queen [2005] NSWCCA 432; (2005) 158 A Crim R 454 at [40] (special leave refused by the High Court: Harris v The Queen [2006] HCATrans 247).
118 R v Kuzmanovic [2005] NSWSC 771.
119 As already observed, s 65 and, indeed, all the hearsay exceptions in the Evidence Bill 2008 (Vic) are automatically
compatible with s 25(2)(g) of the Charter because of that provision’s exception for limitations “otherwise provided by law”.
120 See Australian Law Reform Commission, Evidence, Report No 26 (1985) Ch 13.
121 Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204 at [123], [133]; cf s 1 of the Evidence Bill 2008 (Vic), which provides that the purpose of the bill is “to make fresh provision for the law of evidence” (emphasis added). Part II of this article, to be published in the next issue of this journal, will discuss how a further purpose of creating a law of evidence “that is uniform with Commonwealth and New South Wales law” may also dampen the impact of the Charter.
122 Human Rights Act 1998 (UK), s 3.
123 See Evans S and Evans C, “Legal Redress Under the Victorian Charter of Human Rights and Responsibilities” (2006) 17 PLR 264 at 268, describing it as “[t]he most notorious case”; cf Spigelman, n 34 at 48.
124 Youth Justice and Criminal Evidence Act 1999 (UK), s 41.
calling evidence to the effect that he and the complainant had been having casual sex for weeks, as those acts were neither contemporaneous with the alleged rape nor strikingly similar to it.125

The House of Lords found that this evidence was highly relevant and that the defendant had
therefore been denied a fair trial. The most controversial part of the judgment was the majority’s ruling that the statute’s exception for strikingly similar acts should be read, under the United Kingdom’s interpretations regime, as including all acts that are “so relevant to the issue of consent that to exclude it would endanger the fairness of the trial”.126 The House of Lords’s new rule had no connection to either the statutory provision’s words (which centred on acts that were linked by similarity, not cause-and-effect) nor their purpose (which was to permit a narrow exception for acts that formed part of an unusual pattern, such as a history of riverbank sex or claims of rape by co-workers).127

As the dissenting judge pointed out, in adding this gloss to the rape shield law, the judges appear to be legislating, not interpreting.128 The inclusion of a purposive constraint in Victoria’s interpretation regime is clearly designed to prevent this from occurring here. However, the problem with a purposive constraint in an evidence law context is that the “purpose” of many statutory provisions that regulate the fact-finding process is, at least on one level,129 to limit rights, such as the right to a fair trial. This is especially true of statutory modifications to the common law of investigation, procedure and evidence. Statutory changes to the rules of evidence are typically designed to limit whatever procedural rights those rules entail, notably the right to a fair trial. Statutory powers to gather information are almost always designed to limit whatever privacy the holders of that information may have had. And yet, many of these provisions are ambiguously worded, with judges playing a crucial role in deciding the extent of any intrusion.

The House of Lords has now stepped back from its approach in R v A, instructing courts not “to cross the constitutional boundary” set by the words “so far as it is possible”; however, the new test is not tied to the narrow question of a statutory provision’s purpose, but rather a broader formulation that requires fidelity to the “fundamental features of the legislative scheme”, which permits courts to use the full panoply of interpretative tools, including “reading in”, “reading down” and “supplying missing words”.130 It is doubtful that s 32(1), which concerns how statutes are “interpreted”, rather than how they are “given effect”, goes even that far. The additional, much stronger restriction in Victoria that any interpretation be consistent with a statute’s purpose leaves too little room for the human rights in Pt 2 of the Charter to operate, at least, for many evidence law statutes.

The Charter is not merely a statement of rights. The impact of the Charter on evidence law and the prospects of a rights-oriented reform of evidence law, depends not just on the content of those rights (as outlined in this article) but also on the effectiveness of its mechanisms for promoting those rights. A companion article, to be published in the next issue of this journal, will consider the amenability of the institutions responsible for Victoria’s evidence law to the Charter’s operational provisions.

125 Youth Justice and Criminal Evidence Act 1999 (UK), s 41(3)(b) and (c).
126 R v A (No 2) [2002] 1 AC 45 at [46] (Steyn LJ with Slynn, Clyde and Hutton LJJ agreeing).
127 Youth Justice and Criminal Evidence Act 1999 (UK), s 41(3)(c).
128 R v A (No 2) [2002] 1 AC 45 at [108]-[109] (Hope LJ).
129 Compare Evans and Evans, n 123 at 268.
130 Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557 at [31]- [33], [67]-[68], [115]-[124].