BA v Attorney-General
[2017] VSC 259
•23 May 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2017 00956
| BA | Plaintiff |
| v | |
| ATTORNEY-GENERAL OF THE COMMONWEALTH | First defendant |
| - and - | |
| WILLIAM O’NEALE | Second defendant |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 April 2017 |
DATE OF JUDGMENT: | 23 May 2017 |
CASE MAY BE CITED AS: | BA v Attorney-General |
MEDIUM NEUTRAL CITATION: | [2017] VSC 259 |
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CRIMINAL LAW – mutual assistance in criminal matters on behalf of defendants – federal terrorism-related offences – committal proceeding - prosecution prepared with assistance of foreign agency providing mutual assistance – documents apparently going to credibility and reliability of main prosecution witness whose evidence was prepared in foreign country – whether Attorney-General should make request for mutual assistance on behalf of defendant – whether in interests of justice – whether foreign county likely to refuse request – whether documents otherwise available – whether documents likely to be admissible evidence – whether documents probative of likely issues – whether accused would be unfairly prejudiced were document not available to court – whether other considerations supported making of request – human rights – fair trial – prosecutorial disclosure – ‘equality of arms’ - Mutual Assistance in Criminal Matters Act 1987 (Cth) s 39A, Criminal Code 1995 (Cth) s 102.7, Crimes (Foreign Incursions & Recruitment) Act 1978 (Cth) s 7(1)(e), Criminal Procedure Act 2009 (Vic) ch 4, Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24 and 24, International Covenant on Civil and Political Rights art 14.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr P Morrissey SC with Ms G Morgan | Stary Norton Halphen Criminal Lawyers |
For the first defendant | Mr C Tran | Solicitor for Attorney-General’s Department |
| For the second defendant | Mr N Robinson QC | Solicitor for Commonwealth Department of Public Prosecutions |
HIS HONOUR:
BA has been charged with federal terrorism-related offences that are listed for a contested committal in the Magistrates’ Court of Victoria on 5 June 2017. William O’Neale, an officer of the Australian Federal Police, is the informant. The Commonwealth Director of Public Prosecutions is responsible for the conduct of the prosecution. A lengthy statement of GY, a resident of the United States of America, constitutes the main evidence against BA. GY is to be presented at the committal for cross-examination.
Investigation of offences allegedly committed by BA was carried out by the AFP with the assistance of the Federal Bureau of Investigation in the USA. FBI officers obtained a large volume of information from GY in that country, which was then supplied to the AFP. GY’s statement was prepared by AFP officers in Australia, upon the basis of this information.
For the effective preparation of BA’s case and the better cross-examination of GY at the committal, the defence seek to obtain access to certain documents in the possession of FBI officers in the USA. The documents relate to the information obtained by them from GY, leading to the preparation of GY’s statement by the AFP. As other means of obtaining these documents are not available, BA has made application to this court under the Mutual Assistance in Criminal Matters Act 1987 (Cth) (‘MACMA’) for a certificate that it would be in the interests of justice for the Attorney-General to make a request to the USA that the documents be provided.
Charges brought against BA
After returning to Australia from Turkey in 2015, BA was charged with two offences, which the defence summarise as follows:
Charge 1Between 20 July and 28 August 2014, knowingly providing support to a terrorist organisation, namely Islamic State, contrary to s 102.7 of the Criminal Code 1995 (Cth); and
Charge 2Between 16 May and 30 November 2014, performing services with the intention of supporting a person or association of persons engaged in a hostile activity in a foreign State contrary to s 7(1)(e) of the Crimes (Foreign Incursions & Recruitment) Act 1978 (Cth).
The maximum penalty for the offence in charge 1 is imprisonment for 25 years and for the offence in charge 2 it is imprisonment for 10 years.
The offences are to be tried in the State of Victoria. Being indictable offences not intended to be the subject of direct presentment or summary trial, there must be a committal proceeding in accordance with ch 4 of the Criminal Procedure Act 2009 (Vic). A hand-up brief containing the prosecution evidence, including the statement of GY, has been served on BA pursuant to the provisions of pt 4.4 of that Act. As discussed further below, the prosecution has certain disclosure obligations in relation to, and BA has certain rights to test, that evidence.
By the hand-up brief and other means, the prosecution has already disclosed to the defence information about the contents and preparation of GY’s statement. Not included are the documents in the possession and under the control of the FBI in the USA, which the defence seeks to obtain. If the documents were in the possession and under the control of prosecution authorities in Australia, they would have been provided to the defence in accordance with their usual disclosure obligations, subject to privilege, public interest immunity and other such lawful objections. But the documents are in the possession and under the control of the FBI in the USA, not the prosecution here. Hence, BA’s application to this court under MACMA.
International mutual assistance in criminal matters
International crime and its inimical consequences know no borders and international terrorism falls into the same category. Communities everywhere look to their governments to protect them from international crime, terrorism and like threats. A primary responsibility of government is to provide that protection. International mutual assistance in criminal matters responds to these fundamental concerns. The unfortunate lesson of history is that, without it, providing this protection is made very much more difficult.
Australia was one of the first common law countries to introduce mutual assistance legislation. As specified in s 5(a) and (b), the objects of MACMA are to regulate the provision by Australia of international assistance in criminal matters when requests for such assistance are made under the Act by a foreign country and to facilitate the obtaining by Australia of such assistance. MACMA was amended by the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 (Cth) to permit requests to be made by the Attorney-General on behalf of a defendant in a proceeding in a criminal matter.
As was made clear by the Attorney-General in the second reading speech for MACMA, the legislation ‘reflects the principles of the Commonwealth Scheme of Mutual Assistance in Criminal Matters agreed at the Commonwealth Law Ministers meeting in Harare in July 1986’.[1] Australia played a leading role in the preparation of the Scheme.[2] In part-consistency with international human rights and drawing on the Scheme,[3] s 8(1) of MACMA permits requests for international assistance by foreign countries to be refused where it would unfairly disadvantage or threaten the fundamental interests of individuals in certain specified respects. Inconsistently with international human rights, the likely unfair trial of the accused in the requesting state is not one of those respects.
[1]Commonwealth, Parliamentary Debates, House of Representatives, April 1987, 2318 (Lionel Bowen); see also Explanatory Memorandum, Mutual Assistance in Criminal Matters Bill 1987 (Cth), 1.
[2]David McClean, International Co-operation in Civil and Criminal Matters (Oxford University Press, 3rd ed, 2012) 177-8.
[3]Ibid 181-2.
As submitted by the Attorney-General in the present case, MACMA is not the only means by which Australia may obtain international assistance in criminal matters. Indeed, s 6 provides:
This Act does not prevent the provision or obtaining of international assistance in criminal matters other than assistance of a kind that may be provided or obtained under this Act.
Section 10(2) is to like effect.
Requests for assistance in criminal matters by and to Australia under MACMA may only be made on behalf of Australia by and to the Attorney-General (ss 10(1) and 11(1)). This includes requests made on behalf of defendants (see ss 39A–39B). As do other provisions of the legislation, these provisions emphasise the international (state to state) character of requests. As regards international mutual assistance in criminal matters, the word ‘mutual’ refers to the mutuality of state parties in international relation. Individuals and states are not in that relation. Reciprocity between states is an unstated but fundamental principle underlying the legislation. States, not individuals, are in a position to provide that reciprocity. As requests for assistance will often involve the exercise of coercive powers by the assisting state, this will immediately be apparent.
Following the enactment of MACMA, Australia entered into a large number of bi-lateral treaties with foreign countries in relation to mutual assistance in criminal matters. This process was facilitated internationally by the United Nations at its Eighth Congress on the Prevention of Crime and the Treatment of Offenders in Havana in 1990. Following that Congress, the United Nations General Assembly passed a resolution adopting a Model Treaty on Mutual Assistance in Criminal Matters.[4] Australia also played a leading role in these processes.[5] The Model Treaty is annexed to the resolution and bore close resemblance to other international treaties on the subject.[6] In relation to mutual assistance in criminal matters, the resolution recognised the significance of international human rights, stating that UNGA should be
[c]onscious of the need to respect human dignity and [recall] the rights conferred upon every person involved in criminal proceedings, as embodied in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. [7]
This recognition is reflected in provisions of the Model Treaty that permit requests for international assistance by foreign countries to be refused if providing assistance would unfairly disadvantage or threaten the fundamental interests of individuals in certain specified respects,[8] as with the Commonwealth scheme, MACMA and other treaties. However, the protection afforded in the Model Treaty to human rights is only partial, for here too breach of the fair trial rights of the accused in the requesting state is not one of those respects.
[4]UN Doc A/RES/45/117 (14 December 1990).
[5]Ibid preambular para 6.
[6]David McClean, International Co-operation in Civil and Criminal Matters (Oxford University Press, 3rd ed, 2012) 185-6.
[7]UN Doc A/RES/45/117 (14 December 1990) preambular para 9.
[8]Ibid art 4.
The international law context of mutual assistance is reflected in provisions of MACMA enabling regulations to be made limiting its operation where this is required by Australia’s treaty obligations. In particular, s 7(2) provides:
(2)The regulations may provide that this Act applies to a foreign country subject to:
(a)any mutual assistance treaty between that country and Australia that is referred to in the regulations; and
(b)any multilateral mutual assistance treaty (being a treaty to which that country is a party) that is referred to in the regulations.
Pursuant to these provisions, the Mutual Assistance in Criminal Matters (United States of America) Regulations 1999 (Cth) have been made. Regulation 3 makes the application of MACMA subject to certain specified treaty and like obligations, including the treaty between the government of Australia and the government of the United States of America on mutual assistance in criminal matters which is set out in Schedule 1.[9] Article 1(3) of this treaty states:
This Treaty is intended solely for mutual assistance between the Contracting Parties. The provisions of this Treaty shall not give rise to a right on the part of any private person to obtain, suppress, or exclude any evidence, or to impede the execution of a request.
The evidence in this case is that, rightly or wrongly, the USA relies upon art 1(3) to refuse requests made on behalf of defendants in Australia, despite the human rights implications.
[9]Article 7(1)-(3) permits limitations upon the use of information:
1.If the Central Authority of the Requested State so requests, the Requesting State shall not use any information or evidence obtained under this Treaty in any investigation, prosecution, or proceeding other than that described in the request without the prior consent of the Requested State.
2.The Central Authority of the Requested State may request that information or evidence furnished under this Treaty be kept confidential or be used only subject to terms and conditions it may specify. In such cases, the Requesting State shall use its best efforts to comply.
3.Information or evidence which has been made public in the Requesting State consistent with the requirements of paragraph 1 or 2 may thereafter be used for any purpose.
Prevention, investigation and prosecution of crime, especially international and terrorist-related crime, has an important positive human rights dimension because these are necessary means by which states exercise their responsibility to protect the community. On the other hand, there are concerns that only partial protection is afforded to human rights in the operation and administration of treaties relating to mutual cooperation in criminal matters.[10] Attention has been drawn to the failure of such treaties generally to protect the fair trial rights of accused persons.[11] As has been stated:
[10]See generally Robert J Currie, ‘Human Rights and International Mutual Legal Assistance: Resolving the Tension’ (2000) 11 Criminal Law Forum 143.
[11]See, eg, Christopher Gane, ‘Human Rights and International Cooperation in Criminal Matters’ in P Cullen and WC Gilmore (eds), Crime Sans Frontiers: International Cooperation and European Legal Approaches (Edinburgh University Press, 1998) 161, 169–70.
The growth of international crime and the recognition of the threat it poses to civilised society, particularly in its organised form, is seen as one of the most important items on the current international political agenda. There is a danger than this need for increased collaboration is perceived only to be a prosecutorial necessity. It is equally important, however, that the rights of the defendant are similarly recognised. Adequate and efficient judicial cooperation must be equally available to an accused.[12]
[12]Christopher Murray, ‘Defense Requests for International Judicial Assistance: the UK Perspective’ (1999) 23 Fordham International Law Journal 1344, 1347.
These concerns specifically include the failure of treaties to afford equal rights to accused persons in the prosecutorial process. Referring to the principle of equality of arms, the International Law Association addressed this subject in its conference in Taipei in 1998 (the footnotes are in the original):
Many mutual assistance treaties seriously violate human rights norms by extending the benefits of assistance to the prosecution only.[13] Such a practice violates the principle of ‘equality of arms’ which is a fundamental feature of a fair trial. [14]
The clause in the treaty referred to in the first footnote in this quotation is in the same terms as art 1(3) of the treaty between Australia and the USA referred to above.
[13]For example, the Mutual Assistance Treaty between the United States and the United Kingdom provides:
[14]International Law Association, Committee on Extradition and Human Rights, ‘Third Report’ (Report presented at the 68th Conference, Taipei, 1998) 141.
This issue was judicially considered in the High Court of New Zealand in Samleung International Trading Co Ltd v Collector of Customs.[15] Like art 14 of the International Covenant on Civil and Political Rights[16] (and ss 24 and 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’) and ss 21 and 22 of the Human Rights Act 2004 (ACT)), s 25 of the New Zealand Bill of Rights Act 1990 (NZ) specifies minimum standards of criminal procedure for persons charged with criminal offences, including their right to examine witnesses. In an application for an order that evidence be taken on behalf of the defence overseas, Blanchard J held that the accused could apply to the Attorney-General for the evidence to be obtained under pt II of the Mutual Assistance in Criminal Matters Act 1992 (NZ). Of the operation of that legislation in relation to defence requests, his Honour held:
It would plainly contravene this minimum standard if the Collector of Customs could obtain evidence against the present applicants in Hong Kong by means of the making of a request under Part II of the Mutual Assistance in Criminal Matters Act and if that facility were not also available to [the accused]. It also seems to me that there would be a breach of s 25(f) if the defendant in a criminal matter were able to satisfy the Attorney-General that reasonable grounds existed in terms of [that Act] and if the Attorney-General were then to decline to use his powers to make a request in an appropriate form.[17]
So it was that Blanchard J reconciled the human rights responsibilities of New Zealand in relation to the protection of the community and the fair trial rights of the defence in the mutual recognition context.
[15][1994] 3 NZLR 285 (Blanchard J) (‘Samleung’).
[16]Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[17]Samleung [1994] 3 NZLR 285, 291 (Blanchard J).
Concerns of this kind led the Australian Parliament expressly to introduce requests on behalf of defendants in the 1996 amending legislation. Since those amendments give effect to the principle of equality of arms, I will first discuss that principle which, as the parties are aware, I have had previous cause to consider.
Equality of arms
The following passage in the judgment in Ragg v Magistrates’ Court of Victoria[18] discusses this subject by reference to the inequality of power and resources that usually exists between the prosecution and the defence:[19]
The application of the equality of arms principle in the criminal law context takes account of the prosecutorial setting. Usually, the prosecution enters the trial with two advantages: having superior resources and having conducted the investigation that led to the charges being brought. That gives rise to the issue of disclosure ― voluntary or enforced ― of material by the prosecution to the defence … I would adopt these introductory comments on that subject of Martin Hinton in an article in the Criminal Law Journal:
The resources that are mobilised by the state for the purpose of gathering evidence to prove beyond reasonable doubt that an accused has committed a particular offence are immense by comparison to those generally available to the accused. Listening devices, telephone intercepts, forensic scientists, surveillance, power to search and seize, powers to compel answers to questions, informants and the sheer number of people devoted to the detection of crime, result inevitably in the creation of a significant repository of information related to the offence under investigation. From this repository of information the prosecution selects what it requires to prove the case against the accused. Invariably, the accused is made aware of what is to be actually used against him or her. The accused does not, however, have access to the information that the prosecution decides not to use, and is therefore unable to determine whether it contains any material that may assist him or her in the presentation of a defence. … Access to that unused material … may be crucial to the accused’s defence.[20]
These remarks generally apply to the position of BA in the present case ― BA seeks to obtain access to ‘unused material’ in which the defence has a legitimate forensic interest.
[18](2008) 18 VR 300 (Bell J) (‘Ragg’).
[19]Ibid 311 [50].
[20]Martin Hinton, ‘Unused Material and the Prosecutor’s Duty of Disclosure’ (2001) 25 Criminal Law Journal 121, 121.
As also discussed in Ragg, the criminal justice process in Australia, including the prosecution of BA according to the laws of Victoria, is based on the accusatory model, which has certain features connected with the principle of equality of arms:
The criminal trial is ‘an accusatory and adversarial process’.[21] The person accused is presumed to be innocent and does not have to prove or say anything. The prosecution is the accuser and, from the first to the last, carries the onus of proving each element of the offence according to the criminal standard of beyond reasonable doubt. The rationale is that the general objectives of the criminal justice system ― finding the truth and attributing criminal responsibility ― are best achieved by a trial conducted before an independent and impartial judge, or judge and jury, in which both sides participate according to their best interests. A number of important rules of law and practice apply to regulate and moderate the adversarial nature of such a trial, but it has the appearance, and often the reality, of a ritual battle. Equality of arms is an international human rights principle that picks up the language of the battle to explain some aspects of the most important of those rules ― the right to a fair trial.[22]
I will later refer more specifically to the prosecutorial disclosure obligations applying in BA’s committal proceeding. It is first necessary to discuss the human right to a fair trial to which reference was made in this passage.
[21]TKWJ v R (2002) 212 CLR 124, 158 [106] (Hayne J); RPS v R (2000) 199 CLR 620, 630 [22] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).
[22]Ragg (2008) 18 VR 300, 310 [45] (Bell J).
Australia (and the USA) is a party to the ICCPR.Article 14 relevantly provides:
1.All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law …
2.Everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.
3.In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
…
(b)To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
…
(e)To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; …
Article 14 of the ICCPR encompasses the principle of equality of arms. In Matsoukatidou v Yarra Ranges Council,[23] it was stated that the ‘principle of ‘‘equality of arms’’ is applied under … art 14(1) of the ICCPR … as one feature of the wider concept of a fair trial in civil and criminal cases’. The requirements of the principle were then discussed:[24]
As explained in Ragg[25] by reference to Foucher v France,[26] this principle requires that ‘each party must be afforded a reasonable opportunity to present [his or her] case in conditions that do not place him at a disadvantage via-à-vis his opponent’.[27] In Ragg,[28] is also to be found this longer explanation of the principle by a leading scholar:
The right to a fair trial entails protecting the ‘equality of arms’ principle, an inherent element of the due process of law in both civil and criminal proceedings. Strict compliance with this principle is required at all stages of the proceedings in order to afford both parties (especially the weaker litigant) a reasonable opportunity to present their case under conditions of equality. Indeed, at the core of the concept of ‘equality of arms’, as elaborated in domestic and international case law, is the idea that both parties should be treated in a manner ensuring that they have a procedurally equal position to make their case during the whole course of the trial. Fundamental procedural safe-guards aimed at securing such equality are guaranteed in most domestic legal orders, enshrined in human rights treaties and other relevant international instruments, and set out in the Statutes and Rules of the major international courts and tribunals. [29]
[23][2017] VSC 61 (28 February 2017) [123] (Bell J) (‘Matsoukatidou’).
[24]Ibid.
[25](2008) 18 VR 300, 310–14 [45]–[66] (Bell J).
[26](1998) 25 EHRR 234 (European Court of Human Rights) (‘Foucher’).
[27]Ibid 247 [34] (footnotes omitted).
[28](2008) 18 VR 300, 310 [47] (Bell J).
[29]Stefania Negri, ‘The Principle of “Equality of Arms” and the Evolving Law of International Criminal Procedure’ (2005) 5 International Criminal Law Review 513, 513 (footnotes omitted).
The judgment in Matsoukatidou went on:
Equality of arms is thus a general principle for operationalizing the human right to a fair hearing. It has been so employed by the Human Rights Committee under art 14 of the ICCPR. In the General Comment on that article, the Committee states that equality of arms means:
the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant.[30]
The principle has been applied by the Committee in many cases,[31] including in a case concerning Australia.[32] An interesting example concerns the negative impact on equality of arms of costs orders that impede access to justice.[33] However, the leading cases on the specific content of the right and its application through the principle come from the European Court of Human Rights at Strasbourg. A discussion of these cases is to be found in Ragg,[34] particularly in relation to access by the defence to documents and the prosecutorial duty of disclosure.[35]
[30]Human Rights Committee, General Comment 32: Right to equality before courts and tribunals and to a fair trial, UN Doc CCPR/C/GC/32 (23 August 2007) [13] (footnote omitted).
[31]See, eg, Jansen-Gielen v The Netherlands, Communication No 846/1999, UN Doc CCPR/C/71/D/846/1999 (3 April 2001) [8.2]; Perterer v Austria, Communication No 1015/2001, UN Doc CCPR/C/81/D/1015/2001 (20 July 2004) [9.2].
[32]Dudko v Australia, Communication No 1347/2005, UN Doc CCPR/C/D/1347/2005 (23 July 2007) [6.4].
[33]Aerela and Nakkalajarvi v Finland, Communication No 779/1997, UN Doc CCPR/C/73/D/779/1997 (24 October 2001) [7.2], [7.4].
[34](2008) 18 VR 300, 312–15 [55]–[63] (Bell J).
[35]Matsoukatidou [2017] VSC 61 (28 February 2017) [124] (Bell J).
The principle of equality of arms is also applied in relation to the application of the right to a fair hearing specified in art 6(1) of the European Convention on Human Rights.[36] Matsoukatidou discusses cases in the European Court of Human Rights in Strasbourg in which the principle has been applied in the non-disclosure context in criminal and civil cases concerning self-represented parties:
[36]European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11 and 14, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953).
Foucher,[37] for example, was a case in which a self-represented defendant was denied access to his criminal file and copies of the documents therein. The court found that the principle had been breached and therefore a fair trial had not been afforded.[38]
[37](1998) 25 EHRR 234.
[38]See also De Haes and Gijsels v Belgium (1998) 25 EHRR 1 (‘De Haes and Gijsels’).
In Kerajarvi v Finland[39] the court found that the principle had been breached because the Supreme Court of Finland had failed to make documents available to a self-represented appellant in proceedings related to injury compensation. Importantly, the court emphasised that a fair hearing necessarily required proper participation by the parties:
[39](2001) 32 EHRR 8.
The notion of ‘fair hearing’ required that the applicant himself should have been given the opportunity to assess their relevance and weight and to formulate any such comment as he deemed appropriate. Since no such opportunity was afforded to him, the procedure had not enabled him to participate properly in the proceedings before the Supreme Court.[40]
Further, the court conducting the proceeding has a particular duty to self-represented persons to ensure that participation:
Where, like the applicant, an appellant does not have legal assistance, there is a greater onus on the Supreme Court to ensure of its own motion that justice is not only done but also seen to be done.[41]
The court found that breach of art 6(1) had occurred because ‘the procedure followed by the [court] was not such as to allow proper participation by the appellant party’.[42] This was a case in which the self-represented party was denied a fair trial not because legal aid was denied but because the court could have but did not make that party’s participation effective.[43]
[40]Ibid 165 [39].
[41]Ibid.
[42]Ibid 166 [42].
[43]Matsoukatidou [2017] VSC 61 (28 February 2017) [126]-[127] (Bell J).
On the requirement for application of the right to a fair hearing to facilitate effective participation in the hearing process, Matsoukatidou stated:[44]
[44]Ibid [129].
For the trial to be fair, participation by the individual must be effective. That fundamental principle is derived from the core concept of the ECHR that human rights guarantees are intended to be practical and effective. Thus, in another case involving self-represented parties, the court stated in Steel and Morris v United Kingdom:[45]
The Court recalls that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to court in view of the prominent place held in a democratic society by the right to a fair trial.[46] It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court and that he or she is able to enjoy equality of arms with the opposing side.[47]
Article 6 (1) leaves to the State a free choice of the means to be used in guaranteeing litigants the above rights. The institution of a legal aid scheme constitutes one of those means but there are others, such as for example simplifying the applicable procedure.[48]
As other cases in the Strasbourg court make clear, the same principle applies where the party is represented[49] as BA is in the present case.
[45](2005) 41 EHRR 22, 427 [59]–[61] (footnotes included).
[46]See Airey v Ireland (1979–80) 2 EHRR 305, 312–15 [24] (‘Airey’).
[47]See, among many other examples, De Haes and Gijsels (1998) 25 EHRR 1, 56–7 [53].
[48]See Airey (1979–80) 2 EHRR 305, 316–17 [26]; McVicarv United Kingdom (2002) 25 EHRR 22, 583–4 [50] (‘McVicar’).
[49]See the authorities discussed in Ragg (2008) 18 VR 300, 312-15 [53]-[65] (Bell J).
The principle of equality of arms is reflected in prosecutorial disclosure obligations under the common law and Victorian legislation that will be applied as part of the committal and trial processes in relation to the charges against BA. It is also reflected in fair hearing and other rights that apply in such processes in relation to persons charged with criminal offences under ss 24 and 25 of the Charter.
Equality of arms and prosecutorial disclosure under Victorian law.
The common law duty of Australian (and therefore Victorian) prosecutors to disclose material information to the defence was extensively discussed in Ragg.[50] By reference to long-standing and well-accepted authorities, the scope of that duty was explained thus (the footnotes are in the original):[51]
[50]Ibid 317-20 [71]-[79].
[51]Ibid 317-18 [73].
As to the scope of the duty, it clearly extends to material on which the prosecution intends to rely for its own case,[52] including the substance of all statements of a prosecution witness or the statements themselves.[53] The duty also extends to material in the possession of the prosecution that may undermine the prosecution case[54] or which tends to assist the defence case,[55] to material which tends to show the accused is innocent,[56] which is inconsistent with the guilt of the accused or which, if not inconsistent, is helpful to the accused,[57] to material going to ‘exculpate’[58] the accused, to the criminal history or other material affecting the credit of prosecution witnesses,[59] to statements of material witnesses who the prosecution does not intend to call,[60] and to documents, photographs and other real evidence, including scientific analysis.[61] The duty does not require the disclosure of material that might undermine the defence case, such as matters affecting the credibility of defence witnesses; the defence is responsible for making its own inquiries in this regard.[62] According to Brooking, Byrne and Eames JJ in R v Higgins: ‘The application of this duty of disclosure to a given case will depend upon the facts of that case and the significance of the material in question in the light of the issues in that particular case’.[63] The test is essentially one of possible relevance,[64] but in this regard the prosecutor must give the issues raised in the criminal trial a broad[65] and not a restrictive[66] interpretation. The duty applies by operation of law and therefore arises whether or not the defence requests disclosure of particular material.[67]
[52]R v Ward [1993] 1 WLR 619, 674 (Glidewell, Nolan and Steyn LJJ); approved R v Brown [1998] AC 367, 376 (Lord Hope of Craighead).
[53]R v Higgins (Unreported, Supreme Court of Victoria, Brooking, Byrne and Eames JJ, 2 March 1994) 74.
[54]R v Brown [1998] AC 367, 377 (Lord Hope of Craighead).
[55]Clarkson v DPP [1990] VR 745, 755 (Murphy J); Carter v Hayes (1994) 61 SASR 451, 456 (King CJ).
[56]Dallison v Caffery [1965] 1 QB 348, 369 (Lord Denning MR), approved R v Brown [1998] AC 367, 375 (Lord Hope of Craighead).
[57]Dallison v Caffery [1965] 1 QB 348, 375-6 (Diplock LJ), approved R v Brown [1998] AC 367, 375 (Lord Hope of Craighead).
[58]Clarkson v DPP [1990] VR 745, 759 (Murphy J).
[59]R v Higgins (Unreported, Supreme Court of Victoria, Brooking, Byrne and Eames JJ, 2 March 1994) 73; R v Garofalo [1999] 2 VR 625, 634-5 (Ormiston JA).
[60]R v Higgins (Unreported, Supreme Court of Victoria, Brooking, Byrne and Eames JJ, 2 March 1994); Dallison v Caffery [1965] 1 QB 348, 375-6 (Lord Denning MR), approved R v Brown [1998] AC 367, 375 (Lord Hope of Craighead).
[61]R v Higgins (Unreported, Supreme Court of Victoria, Brooking, Byrne and Eames JJ, 2 March 1994) 75; R v Ward [1993] 1 WLR 619, 674 (Glidewell, Nolan and Steyn LJJ), approved R v Brown [1998] AC 367, 376 (Lord Hope of Craighead).
[62]R v Brown [1998] AC 367, 379-80 (Lord Hope of Craighead).
[63]R v Higgins (Unreported, Supreme Court of Victoria, Brooking, Byrne and Eames JJ, 2 March 1994) 71; R v TSR (2002) 5 VR 627, 650 (Chernov JA).
[64]R v Keane (1994) 99 Cr App R 1, 6 (Lord Taylor CJ), approved R v Brown [1995] 1 Cr App R 191, 199 (Steyn LJ).
[65]R v Brown [1995] 1 Cr App R 191, 199 (Steyn LJ).
[66]R v H [2004] 2 AC 134, 155 (Lord Bingham of Cornhill).
[67]R v Ward [1993] 1 WLR 619, 674 (Glidewell, Nolan and Steyn JA).
It was emphasised that the duty applies not only to material that the prosecution intends to use against the accused but also extends to ‘unused material’ (see further below):[68]
[68]Ragg (2008) 18 VR 300, 318 [74] (Bell J).
It is perhaps worth emphasising that the prosecutor’s duty of disclosure extends to ‘unused material’,[69] that is, material that tends to weaken the prosecution case or strengthen the defence case but which the prosecutor does not intend to use against the accused. That, generally speaking, is the category of material sought by Mr Corcoris in the present case. The issue was recently considered by the House of Lords in R v H.[70] Here is the golden rule stated by Lord Bingham on behalf of the Judicial Committee on the extent of the duty in such circumstances which, with respect, I endorse:
Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.[71]
The limits of the principle were also discussed,[72] but these are not relevant here.
[69]See generally Martin Hinton, ‘Unused Material and the Prosecutor’s Duty of Disclosure’ (2001) 25 Criminal Law Journal 121.
[70][2004] 2 AC 134.
[71]Ibid 147.
[72]Ragg (2008) 18 VR 300, 319-20 [77]-[78] (Bell J).
After considering the evidence about the documents that BA seeks to obtain access to, I have concluded that the defence has a legitimate forensic interest in obtaining that access, especially in relation to testing the evidence of and cross-examining GY at the committal, the procedures for which are discussed below. Therefore, according to these common law disclosure obligations of the prosecution, if the documents were in the possession of or under the control of the prosecution in Victoria, they would normally have been provided. The documents would also have been disclosed under the like obligation of prosecutors under the Criminal Procedure Act, to which I now turn.
Without derogating from the common law duty of prosecutors to disclose material information to the defence,[73] the Criminal Procedure Act gives elaborate effect to the principles of equality of arms and prosecutorial disclosure in relation to committals. As specified in s 97, the purposes of a committal proceeding are:
[73]Section 416(1) of the Criminal Procedure Act provides that nothing in the Act ‘derogates from a duty otherwise imposed on the prosecution to disclose to the accused material relevant to a charge’.
(a)to determine whether a charge for an offence is appropriate to be heard and determined summarily;
(b)to determine whether there is evidence of sufficient weight to support a conviction for the offence charged;
(c) to determine how the accused proposes to plead to the charge;
(d) to ensure a fair trial, if the matter proceeds to trial, by—
(i)ensuring that the prosecution case against the accused is adequately disclosed in the form of depositions;
(ii)enabling the accused to hear or read the evidence against the accused and to cross-examine prosecution witnesses;
(iii)enabling the accused to put forward a case at an early stage if the accused wishes to do so;
(iv)enabling the accused to adequately prepare and present a case;
(v)enabling the issues in contention to be adequately defined.
All of these purposes are relevant as regards the two charges brought against BA. The submissions made on behalf of BA drew particular attention to the purpose in s 97(c).
Section 107(1) requires the informant (in this case, the second defendant) to serve upon the accused a ‘hand-up brief’. Under s 110, the contents of a hand-up brief must include (as here relevant):
(a) a notice in the form prescribed by the rules of court—
(i) specifying the date of the committal mention hearing; and
(ii)explaining the nature of a committal proceeding and the purpose of the various stages; and
…
(b) a copy of the charge-sheet relating to the alleged offence; and
(c) a statement of the material facts relevant to the charge; and
(d)any information, document or thing on which the prosecution intends to rely in the committal proceeding including—
(i)a copy of any statement relevant to the charge signed by the accused, or a record of interview of the accused, that is in the possession of the informant; and
…
(iii)a copy or statement of any other evidentiary material that is in the possession of the informant relating to a confession or admission made by the accused relevant to the charge; and
(iv)a list of the persons who have made statements that the informant intends to tender at the committal hearing, together with copies of those statements; and
…
(vii)a legible copy of any document which the prosecution intends to produce as evidence; and
(viii)a list of any things the prosecution intends to tender as exhibits; …
The hand-up brief in the present case does not contain the documents sought by the defence because they are in the possession or under the control of the FBI in the USA.
Under the Criminal Procedure Act, the prosecution is under a continuing obligation to make disclosure to the defence. Thus s 111 provides:
(1) This section applies to any information, document or thing that—
(a)comes into the informant's possession or comes to the informant's notice after the service of the hand-up brief; and
(b)would have been required to be listed, or a copy of which would have been required to be served, in the hand-up brief.
(2) The informant must—
(a) serve on the accused a copy of the document or list; and
(b) file a copy with the registrar; and
(c)if the DPP is conducting the committal proceeding, forward another copy to the DPP—
as soon as practicable after the information, document or thing comes into the informant's possession or comes to the informant's notice.
The conduct of committal hearings is governed by pts 4.7 and 4.8 of the Criminal Procedure Act. It contains provisions in relation to witnesses giving evidence (s 130), cross-examination of witnesses (s 132),[74] and admitting non-oral evidence (s 139).
[74]Under s 124, leave is required for witnesses to be cross-examined.
Committal proceedings are determined under pt 4.9. In particular, s 141(4) provides:
(4)At the conclusion of all of the evidence and submissions, if any, the Magistrates' Court must—
(a)if in its opinion the evidence is not of sufficient weight to support a conviction for any indictable offence, discharge the accused; or
(b)if in its opinion the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged, commit the accused for trial in accordance with section 144; or
(c)if in its opinion the evidence is of sufficient weight to support a conviction for an indictable offence other than the offence with which the accused is charged, adjourn the committal proceeding to enable the informant to file a charge-sheet in respect of that other offence and, if a charge-sheet is filed, must commit the accused for trial in accordance with section 144.
Section 144 makes provision for the procedure to be adopted before and on committing an accused for trial. As specified in s 144(2)(c), an accused who is so committed, if not granted bail, may be remanded in custody until trial or a date to be fixed by the court.
As discussed, the defence has a legitimate forensic interest in seeking to obtain access to the documents sought for the purposes of the committal proceeding. Therefore, if the documents were in the possession or under the control of the prosecution in Victoria, they would normally have been provided in accordance with the provisions of the Criminal Procedure Act governing such proceedings.
Finally I turn to BA’s human rights under the Charter. As Kirby J said in Mallard v R,[75] there is a ‘high measure of consistency’ between international human rights law and Australia criminal procedure law. From Ragg it can be seen that this consistency is expressed in the operation of the common law prosecutorial obligation to disclose.[76] From the above discussion, it can be seen that this consistency is also expressed in the provisions of the Criminal Procedure Act relating to committals. It is also expressed in the provisions of the Charter relating to the fair trial of persons charged with criminal offences.
[75](2005) 224 CLR 125, 157 [87].
[76]Ragg (2008) 18 VR 300, 320 [79] (Bell J).
The Charter is broadly based on the ICCPR.[77] Reflecting art 14,[78] ss 24 and 25 specify fair hearing and cognate rights in relation to persons charged with criminal offences. These rights encompass the principle of equality of arms,[79] which encompasses the prosecutorial disclosure obligations that I have discussed (see above). Under s 6(2)(b) of the Charter, these rights must be applied by the Magistrates’ Court when conducting the committal proceeding in relation to BA because the rights relate to court proceedings[80] and in that proceeding BA is a person charged with criminal offences as specified in ss 24 and 25.[81] It follows that providing the documents sought by the defence would be consistent not only with the common law duty of prosecutors to disclose material documents and information to the defence and the specific disclosure obligations applying to committals under the Criminal Procedure Act, but also Victorian human rights law as specified in the Charter.
[77]Kracke v Mental Health Review Board (2009) 29 VAR 1, 19 [29] (Bell J).
[78]Ibid 86 [374].
[79]Matsoukatidou [2017] VSC 61 (28 February 2017) [122] (Bell J).
[80]Ibid [32]-[46].
[81]Ibid [73]-[75], [78], [92]-[95].
The provisions of the Mutual Assistance in Criminal Matters Act as they relate to requests made on behalf of defendants in criminal proceedings may now be examined.
Requests for assistance in criminal matters on behalf of defendants
The applicable principles of interpretation to the federal legislation in question are not in dispute. It was stated in Project Blue Sky Inc v Australian Broadcast Authority[82] by McHugh, Gummow, Kirby and Hayne JJ that:
[82](1998) 194 CLR 355 (‘Project Blue Sky’).
The duty of a Court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond to with the grammatical meaning of the provision.[83]
More recently, in Australian Education Union v Department of Education and Children’s Services[84] French CJ, Heydon, Kiefel and Bell JJ said:
The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose.[85]
[83]Ibid 384.
[84](2012) 248 CLR 1.
[85]Ibid 13 [26].
Section 15AA of the Acts Interpretation Act 1901 (Cth) provides that an interpretation of legislation that would best achieve its purpose or object is to be preferred to other interpretations. Section 15AB(1)(a) and (b) permits consideration of material not forming part of the legislation for the purpose of confirming the ordinary meaning of the text or where the meaning is ambiguous or obscure. Under s 15AB(2)(a) and (b), the material that may be considered includes reports of law reform and like bodies, reports of committees of the Parliament and the explanatory memoranda and parliamentary speeches relating to the legislation.
In this connection, recent judgments of the High Court have warned against undue consideration of historical considerations and extrinsic materials. For example, in Alcan (NT) Aluminium Pty Ltd v Commissioner of Territory Revenue[86] is to be found this statement by Hayne, Heydon, Crennan and Kiefel JJ:[87]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself.[88] Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.[89] The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[90] The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision,[91] in particular the mischief[92]it is seeking to remedy.[93]
[86](2009) 239 CLR 27 (‘Alcan’).
[87]Ibid 46–7 [47].
[88]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic)(2001) 207 CLR 72, 77 [9] (Gaudron, Gummow, Hayne and Callinan JJ), 89 [46] (Kirby J); Stevens v Kabushiki Kaisha Sony Computer Entertainment(2005) 224 CLR 193, 206 [30] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 240–1 [167]–[168] (Kirby J); Carr v Western Australia(2007) 232 CLR 138, 143 [6] (Gleeson CJ); Director of Public Prosecutions (Vic) v Le(2007) 232 CLR 562, 586 [85] (Kirby and Crennan JJ); Northern Territory v Collins(2008) 235 CLR 619, 642 [99] (Crennan J).
[89]Nominal Defendant v GLG Australia Pty Ltd(2006) 228 CLR 529, 538 [22] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 555–6 [82]–[84] (Kirby J). See also Combet v The Commonwealth(2005) 224 CLR 494, 567 [135] (Gummow, Hayne, Callinan and Heydon JJ); Northern Territory v Collins(2008) 235 CLR 619, 642 [99] (Crennan J).
[90]Hilder v Dexter [1902] AC 474, 477–8 (Earl of Halsbury LC).
[91]Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, 397 (Dixon CJ), quoted with approval in Project Blue Sky (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ).
[92]Heydon's Case (1584) 3 Co Rep 7a, 7b [76 ER 637, 638].
[93]Alcan (2009) 239 CLR 27, 46–7 [47].
With those principles in mind, I turn to the provisions of MACMA governing the procedure for making requests for criminal assistance on behalf of defendants by the Attorney-General. These are the provisions that apply to BA’s application in the present case. Section 39A(1) enables defendants in proceedings relating to criminal matters (not just the actual trial of charges)[94] to initiate an application in relation to such a request. It provides:
[94]Such proceedings include criminal matters by way of appeal: Chidiac v R [2016] NSWCCA 23 (24 February 2016) [35] (Button J, Hoeben CJ at CL and Adamson J agreeing).
(1)If a defendant in a proceeding relating to a criminal matter thinks that it is necessary for the purposes of the proceeding that:
(a) evidence should be taken in a foreign country; or
(b)a document or other article in a foreign country should be produced; or
(c) a thing located in a foreign country should be seized; or
(d)arrangements should be made for a person who is in a foreign country to come to Australia to give evidence relevant to the proceeding;
the defendant may apply to the relevant court (see subsection (1A)) for a certificate that it would be in the interests of justice for the Attorney‑General to make any appropriate request to the foreign country under Part II, III or IV so that:
(e) the evidence may be taken; or
(f) the document or article may be produced; or
(g) the thing may be seized; or
(h) the arrangements may be made.
As can be seen, the applicant must convince the relevant court to certify that it is ‘in the interests of justice’ for the request to be made, which is the fundamental consideration. By design, these provisions operate expressly to bring making requests on behalf of defendants into the general provisions of MACMA relating to requests under pt II, III and IV, depending on the nature of the request concerned.[95]
[95]Part II relates to requests in relation to taking evidenced and producing documents – the present case. Part III relates to assistance in relation to search and seizure. Part IV relates to arrangements for persons to give evidence and assist investigations.
The relevant court is the Federal Court of Australia or the Supreme Court of a State or Territory, depending on where the proceeding is being heard (s 39A(1A)). Before making a decision on such an application, the court must give notice and an opportunity to be heard on the merits of the application to the parties to the proceeding and the Attorney-General (s 39A(2)). That has occurred in the present case.
In deciding whether to issue a certificate, s 39A(3) requires the court to have regard to the following mandatory considerations:
(a)whether the foreign country is likely to grant such a request made by the Attorney-General on behalf of the defendant;
(b)the extent to which the material (whether it is evidence, a document, an article or a thing) that the defendant seeks to obtain from the foreign country would not otherwise be available;
(c)whether the court hearing the proceeding would be likely to admit the material into evidence in the proceeding;
(d)the likely probative value of the material, if it were admitted into evidence in the proceeding, with respect to any issue likely to be determined in the proceeding;
(e)whether the defendant would be unfairly prejudiced if the material were not available to the court.
The court may have regard to other matters that it considers to be relevant (s 39A(4)). In this case, I do consider another consideration be relevant (see below).
If the court issues a certificate, it must send a copy to the Attorney-General (s 39A(5)(a)). As provided in s 39A(5)(b), the following must then happen:
the Attorney‑General must, in accordance with the certificate, make a request on behalf of the defendant to the foreign country for international assistance unless he or she is of the opinion, having regard to the special circumstances of the case, that the request should not be made.
As can be seen, the Attorney-General must make the request unless ‘special circumstances’ apply to the case in his or her opinion.
If the requested country refuses a request, the Attorney-General must so certify, and the certificate is prima facie evidence of the facts asserted (s 39B(1) and (2)). Refusal. may have implications for the conduct of the relevant criminal proceeding in Australia, which is presumably why (among other reasons) it must be so certified.
Before these provisions were introduced, there was no particular procedure for making a request for mutual assistance on behalf of defendants. Such a procedure was enacted by the Mutual Assistance in Criminal Matters Legislation Amendment Act. This followed a review of MACMA involving consultation with prosecution and investigation agencies, law societies, bar councils, the Law Council of Australia, the Australian Law Reform Commission and representatives of civil liberties groups.[96]
[96]Commonwealth, Parliamentary Debates, House of Representatives, 26 June 1996, 2831 (Daryl Williams).
A background paper for the review of the MACMA, prepared in the Attorney-General’s Department in August 1994, made a number of recommendations for reform of the Act. These recommendations were largely supported during the consultation process and formed the basis of the amending legislation.[97]
[97]Ibid.
Emphasising the desirability of equality between the prosecution and defence with respect to obtaining overseas evidence, the background paper recommended:
there should be a provision in the Act for the Attorney-General to request assistance on behalf of a defendant where so directed by a court.
It is to be expected that in some cases where the prosecution has obtained some evidence from overseas that the defence will also want to be able to seek rebuttal evidence from overseas.[98]
[98]Commonwealth of Australia, Attorney-General’s Department, Criminal Law Division, International Branch, ‘Review of the Mutual Assistance in Criminal Matters Act 1987’ (Background Paper, August 1994) 44.
The impartial and independent role of the court was also emphasised:
Where a defendant can demonstrate that such rebuttal evidence would not be available from Australian sources and that it is in the interests of justice for it to be able to obtain such evidence then the defence should be able to make an application to the court seeking that the court direct Central Office to make a certain specified request on its behalf.
It is not appropriate that Central Office make such requests on behalf of defendants except where the Court directs it to do so. Central Office could be accused of conflict of interest if it is required to make requests in the same case by both the prosecution and the defence.[99]
[99]Ibid.
To avoid any perception of such conflict of interest, it was recommended that requests on behalf of defendants go through the same channel as requests on behalf of the prosecution:
the most suitable approach to be adopted where a defendant can demonstrate a need to be able to make a request to a foreign country is to use the same channel as in prosecution requests, ie the Central Office, but effectively remove any question of conflict of interest by requiring Central Office to make the specified request on behalf of a defendant if so ordered by a court.[100]
These recommendations were implemented in the amending legislation. The background paper also discussed what guidance should be given as to the matters to be taken into account by the court when deciding whether it is in the interests of justice for a request to be made on behalf of a defendant. Four criteria were suggested,[101] from which paras 39A(3)(b)-(e) originated. Whether a foreign country was likely to grant the request (para (a)) was added after the review process was completed.
[100]Ibid.
[101]Ibid 45.
In the several provisions of s 39A, a primary power to issue a certificate was deliberately conferred upon a superior court and a residual power of discretionary refusal was deliberately conferred upon the Attorney-General. The primary power to issue a certificate was seen to be appropriate for exercise by the judiciary and the residual power of discretionary refusal was seen to be appropriate for exercise by the executive because the powers are different in nature and must be exercised with regard to considerations that differ in certain respects. [102]
[102]See Commonwealth, Parliamentary Debates, House of Representatives, 26 June 1996, 2833–34 (Daryl Williams).
After stressing that the new procedure was ‘subject to safeguards’,[103] the explanatory memorandum emphasised the significance of the new provisions:
[103]Explanatory Memorandum, Mutual Assistance in Criminal Matters Legislation Amendment Bill 1996 (Cth), 1.
Proposed clause 39A is a significant addition to the Act in that it enables a defendant in a criminal proceeding to apply to a Supreme Court … in which the proceeding against the defendant is being heard for a certificate that it would be in the interests of justice for the Attorney-General to make a request to the foreign county under the Act on behalf of a defendant. The new clause will enable a defendant to seek evidence [s 39A(1)(a)], including rebuttal evidence, or other types of assistance listed in sub-clauses 39A(1)(b), (c) and (d), from a foreign country (italics added).[104]
The itacilised words confirm that the assistance that may be sought is not limited to evidence (see below). The explanatory memorandum goes on to offer this description of the procedure for consideration by the court of applications for a certificate:
Some countries have indicated that they regard mutual assistance in criminal matters arrangements as restricted to ‘government to government’ requests and that they would be unwilling, or unable, to grant assistance to defendants to proceedings. Subsection 39A(2) would enable the Attorney-General, or his or her representative, to put information such as this before the court where it was known, or believed on reasonable grounds, that this would be the likely response of the particular foreign country to a request made on behalf of the defendant.[105]
As so explained, the notice and hearing procedures in s 39A(2) reflect the international nature of requests and enable the Attorney-General to make submissions about the likely response of the foreign country concerned.
[104]Ibid 12-13 [49].
[105]Ibid 13 [51].
The purpose of the provisions of MACMA permitting requests for assistance to be made on behalf of defendants is to assist in ensuring the fair hearing and determination of trials and other proceedings in relation to criminal matters under Australia’s system of justice. Through the particular procedure established by the provisions, accused persons may, where the court certifies and the Attorney-General does not exercise the residual discretion to refuse, seek to obtain access to documents and evidence in a foreign country that may be necessary for the purpose of the defence, just as the prosecution may seek to obtain access to such material for the purpose of investigative and prosecutorial processes under other provisions of MACMA. Enabling accused persons to seek to obtain access to such material gives effect to the human rights principle of equality of arms as explained above and also to the principle of prosecutorial disclosure that is a fundamental feature of Australian law in relation to the fair trial of accused persons and other proceedings relating to criminal matters.
The connection between the fair hearing and determination of trials and other proceedings relating to criminal matters under Australia’s system of criminal justice, on the one hand, and requesting assistance on behalf of defendants, on the other hand, is apparent from the requirement that it be in the ‘interests of justice’ to make a request (s 39A(1)) and for the Federal Court of Australia or the Supreme Court in the relevant State or Territory to determine whether to issue a certificate to that effect in the independent exercise of a judicial discretion, after taking into account the mandatory considerations (s 39A(3)). These provisions ensure that the primary decision of whether a certificate should be issued is made by the superior court responsible for the administration of criminal justice in the jurisdiction concerned.
The connection is also apparent from the specified mandatory considerations, especially paras 39A(3)(b)-(e). These considerations are directed in one way or another to the relevance, admissibility or significance of the material to the trial of the accused or other proceeding relating to a criminal matter, having regard to the issues of fact and law involved, and the consequence for the accused and the proceeding if the court were not to have access to it. Judicial assessment of these considerations in the jurisdiction concerned is therefore appropriate.
For assessing the considerations specified in paras 39A(3)(b)-(e), the court will likely receive evidence about the criminal proceeding concerned, including the likely issues of fact and law. However, the court will not be in the same position as the trial court, which will ultimately be possessed of all of the evidence as actually admitted and aware of all the actual issues. The function of determining an application for a certificate is not to be confused with the function of determining whether evidence is admissible, whether evidence should be excluded or whether a criminal proceeding should be temporarily or permanently stayed. The considerations in paras 39A(3)(b)-(e) are autonomous in the sense that they fall to be applied according to their terms within the operation of the mutual recognition provisions relating to requests made on behalf of defendants. Whether the court would be likely to admit the material into evidence (para (c)) will no doubt draw upon the laws of evidence in the jurisdiction concerned, but does not equate to an evidentiary ruling. Whether the defendant would be unfairly prejudiced (para (e)) by refusing the request will require consideration of questions of fairness and prejudice in relation to the trial or other criminal proceeding, but does not equate to an evidentiary exclusion or stay of proceeding ruling.
From the terms of s 39A(1)(b) and (c) and s 39A(3)(b) and (e), in particular, it can be seen that an application for a certificate may be made with respect of documents, articles and things that are or may not be evidentiary in nature. The explanatory memorandum confirms this (see above). The operation of the principles of equality of arms and prosecutorial disclosure in relation to material that has not been or is not to be used by the prosecution has been discussed. Consistently with those principles, applications for requests may be made with respect to material that might assist the defence case or damage the prosecution case even though it might not be admissible evidence. In respect of material that is potentially evidentiary, it is a relevant consideration whether the court hearing the trial or proceeding would be likely to admit the material into evidence (s 39A(3)(c)) and whether it has a likely probative value (s 39A(3)(d)). In applying these provisions, it is necessary to bear in mind that, as the issues in a trial or proceeding develop, material that is initially unused may become evidentiary.
The ‘likely probative value’ of the material, if admitted into evidence, is a relevant consideration under s 39A(3)(d). That probative value must be assessed ‘with respect to any issue likely to be determined in the proceeding’. This directs the attention of the court to the degree of the relevance of the material to those issues. The general policy of s 39A(1)-(3) is that the accused must establish that the material sought has real and not speculative significance in the trial or other criminal proceeding. As with the law ordinarily applying to summonses to produce and like coercive processes, the mutual assistance provisions in relation to requests made on behalf of defendants do not authorise fishing expeditions. Therefore it is the issues likely to be determined rather than issues of other significance that are of importance. The more probative is the material to those issues, the stronger will be the foundation for concluding that it would be in the interests of justice for the Attorney-General to make the request.
The Attorney-General submitted that whether a foreign country was likely to grant a request made by the Attorney-General on behalf of a defendant (s 39A(3)(a)) is a very weighty consideration of decisive significance in the present case. I agree that it is an important consideration. Its significance is reinforced by the requirement in s 39A(2)(b) to give notice to and hear the Attorney-General (as well as other parties) on the merits of the application. As occurred in the present case, this procedure enables the Attorney-General to lead evidence and make submissions on this subject. The mandatory requirement to take this consideration into account indicates that the court should not lightly issue a certificate where it concludes that the foreign country is not likely to grant the request.
However, it is equally clear that this consideration is only one of five specified considerations in s 39A(3)(a)-(e) and the fundamental consideration is whether the issue of the certificate is in the interests of justice (s 39A(1)). The other mandatory considerations, that fundamental consideration and other relevant matters (s 39A(4)) may lead the court to issue a certificate even when satisfied that the foreign country is not likely to grant the request. Section 39A(3)(a)-(e) requires the court to be sensitive to and give real consideration to a likely refusal, but not make the determination of the court beholden to a likely refusal. As the central consideration is whether it is in the interests of justice in Australia for the Attorney-General to make the request, it is difficult to see how it could be otherwise. The submissions of the Attorney-General based on futility must therefore be rejected. They apply a concept of futility that is derived from general public law sources and which does not reflect this statutory scheme. Futility analysis does not operate to qualify or override the several criteria that Parliament has legislated, which must all be applied according to their terms.
The consideration in s 39A(3)(e) is whether the defendant ‘would’ be ‘unfairly prejudiced’ if the material were not available to the court. It is not enough that the defendant might be unfairly prejudiced; the requirement is that the defendant would be so prejudiced. It is not enough that the defendant would be prejudiced; the requirement is that the prejudice would be unfair. From the context, it can be seen that the unfairness and the prejudice must arise in relation to the trial or other criminal proceeding. Unfair prejudice may encompass situations in which, without a certificate, the defence will not be able to seek to obtain access to material that it needs for the legitimate forensic purpose of advancing the case of the accused or damaging the case of the prosecution in the proceeding, especially where the prosecution has had access to material, or prosecution evidence has been prepared upon the basis of material, to which the defence has not had access. The expression ‘not available to the court’ includes situations where material is not available to a defendant for legitimate forensic purposes, for the court’s judicial powers extend to supervision of the processes pursuant to which defendants can seek to obtain access to such material in criminal proceedings (see above).
Whether the defendant would be unfairly prejudiced if the material were not available to the court is an important consideration. It reflects the central purpose of facilitating requests made on behalf of defendants in proceedings relation to criminal matters. As discussed above, this purpose is to address the potentially asymmetrical consequences of requesting assistance in criminal matters under MACMA. Previously, material could be sought on behalf of the prosecution yet there was no particular procedure whereby this could be done on behalf of the defence. In the interests of ensuring equality of arms, due prosecutorial disclosure and the fair trial of accused persons under Australian law, provisions expressly authorising such requests were introduced, subject to safeguards, and based upon the fundamental requirement that it be in the interests of justice to make the request, as certified by a superior court, after taking the mandatory and other relevant considerations into account.
The operation of the provisions is illustrated by Chidiac v R.[106] In this case, a certificate was sought for the purpose of obtaining evidence from a person who had been a significant prosecution witness at the trial of the accused but who had since recanted his evidence by way of a signed document and a television interview. The Attorney-General did not wish to be heard on the application. No evidence was put before the court as to the likelihood of the request being granted in the foreign jurisdiction. It was a clear case in that, given the retractions since the trial, fresh evidence of the witness as to the truthfulness or otherwise of his evidence at trial would likely be of very high probative value in the conviction appeal of the accused. The certificate was granted. As the informant submitted the present case, BA’s application is to be distinguished and is not as strong.
[106][2016] NSWCCA 23 (24 February 2016) (Hoeben CJ at CL, Adamson and Button JJ).
In R v Lodhi,[107] the application for a certificate related to evidence from five witnesses in Pakistan whom the accused wished to call in his defence by way of video evidence at the trial of criminal charges in the Supreme Court of New South Wales. The prosecution advised the court that information had come into its possession making it clear that Pakistan, in determining whether to allow one of its citizens to give evidence in the trial, would require a formal request for mutual assistance from Australia. The prosecution did not oppose the application for the certificate. The Attorney-General did not want to be heard on the application. In determining to grant a certificate, Whealy J found there was no reason to suppose other than that the request would be granted,[108] and was positively satisfied that the defendant would be unfairly prejudiced if the material were not to be available to the court.[109] Again, I accept the submission of the informant that the present case is distinguishable on the facts and not as strong.
[107][2006] NSWSC 666 (12 May 2006) (Whealy J).
[108]Ibid [5].
[109]Ibid [10].
I turn now to determining whether a certificate should be granted in the present case.
Whether certificate should be granted
I will first consider the mandatory considerations.
Section 39A(3)(a)
This consideration is:
(a)whether the foreign country is likely to grant such a request made by the Attorney-General on behalf of the defendant; …
It seems clear from the evidence in this case that the USA is not likely to grant a request made by the Attorney-General on behalf of BA. The CDPP has corresponded with the FBI in relation to the likely response to any such request and has been informed that the documents sought by BA ‘will not be provided’. Similar requests have been refused in the past. It is the submission of the Attorney-General that the request is not likely to be granted. I accept this submission.
The basis for the refusal would appear to be the USA’s interpretation of art 1(3) of the treaty between Australia and the USA on mutual assistance in criminal matters (see above). As we have seen, this article provides that the treaty is intended solely for mutual assistance between the treaty parties and does ‘not give rise to a right on the part of any private person’ to obtain evidence. The USA appears to consider that requests by the Attorney-General on behalf of defendants are precluded by this article and it is therefore entitled to refuse to grant such requests.
There is reason to doubt this interpretation of art 1(3) of the treaty. As I have pointed out, it is an international instrument. As such, it confers rights only upon the state parties. BA as an individual does not have any rights under the treaty and does not assert any such rights. Australia as a state party would be making the request, not BA. Australia would be doing so for the purpose of ensuring the proper administration of justice in relation to BA’s criminal proceeding. From Australia’s point of view, doing so would serve pressing institutional and public interests, even though from BA’s point of view it would also serve pressing individual and private interests. Requests made on behalf of defendants are made under the provisions of pts II, II and IV of MACMA which apply to requests made by Australian generally (see above).
However, there is no getting away from the fact that the Attorney-General would be making a request ‘on behalf of the defendant’. It is that which appears to give rise to the USA’s reliance upon art 1(3) of the treaty. As a matter of the proper interpretation of that article, there is reason to doubt that such reliance upon the treaty is actually available. But on the evidence, it certainly reflects the USA’s view of the matter. I must take cognisance of the fact that the USA appears ready to rely upon its interpretation of art 1(3) as a basis for refusal.
While I consider it to be not likely that the USA will grant a request made by the Attorney-General on behalf of BA, I cannot say that there is no possibility of such a request being granted. I think this very much depends upon a number of international considerations concerning the relationship between Australia and the USA, which are beyond the court’s knowledge and control. It would be my respectful hope that the USA would take into account that the request, if the Attorney-General does not exercise the residual discretion to refuse to make it, will be made because a court has certified that it is in the interests of Australian justice for the documents to be provided, as discussed in this judgment. If the request is refused, it may have consequences for the conduct of the committal in relation to and the trial of the charges brought against BA. And, as I have written, requests are made on behalf of defendants in order to protect Australia’s pressing institutional and public interests in relation to the administration of criminal justice.
Section 39A(3)(b)
This consideration is:
(b)the extent to which the material (whether it is evidence, a document, an article or a thing) that the defendant seeks to obtain from the foreign country would not otherwise be available; …
The evidence establishes that the documents sought by BA are in the possession and under the control of the FBI in the USA. Without access pursuant to a request for criminal assistance on behalf of a defendant, the documents would not otherwise be available to BA. That being said, it is in the interests of justice that BA, as an accused person who is to be tried according to Australian legal standards, should not thereby be unfairly prejudiced (see below).
Section 39A(3)(c)
This consideration is:
(c)whether the court hearing the proceeding would be likely to admit the material into evidence in the proceeding; …
The documents relate to the preparation of GY’s statement. Without access to the documents, it is not possible for BA to establish that they are evidentiary and admissible in nature. They appear more likely to be documents that will be used in cross-examination of GY and generally in advancing the defence and damaging the prosecution in the proceeding. But BA has a legitimate forensic interest in seeking to obtain access to the documents for these purposes. Whether the documents become evidentiary and admissible depends upon the course of the proceeding, including the cross-examination of GY, but this is reasonably possible. The ultimate admissibility of the documents will depend upon resolution of lawful objections that the CDPP has foreshadowed are likely to be made.
Section 39A(3)(d)
This consideration is:
(d)the likely probative value of the material, if it were admitted into evidence in the proceeding, with respect to any issue likely to be determined in the proceeding; …
As just discussed, it is not possible to say that the documents are evidentiary and admissible at this stage. The main relevance of the documents to the proceeding is as unused material that is likely to be relevant to the cross-examination of GY, remembering that GY’s evidence is the foundation of the prosecution’s case. They go to GY’s credibility and reliability of GY’s evidence. The documents therefore have a real and not speculative relevance to the issues in the proceeding.
I would compare the documents sought in the present case with the documents at issue in Ragg.[110] In that case, the informant challenged on grounds of error of law a decision of a magistrate conducting a committal to refuse to strike out paragraphs of a summons to produce documents served by the accused on the informant. Among other things, the documents included the notes of the principal investigator. The notes were used in the preparation of the main evidence of the prosecution, which involved reconstructing certain financial transactions. The challenge was dismissed:
[T]he magistrate was surely correct to say these commonly form the basis of significant cross-examination in a criminal proceeding … In a case such as this, the defence are entitled, subject to lawful objection, to production of the notes (broadly defined) of the principal investigator. That is because his credit as a witness will almost certainly be in issue, and because the validity of the reconstruction on which the prosecution case depends, for which he was responsible, will definitely be in issue. Mr Ragg concedes the defence should have the material in this category going to financial matters, which probably accounts for a lot of the documents concerned. But the very nature of the case is such that the defence is legitimately interested in the totality of Mr Ragg’s notes. How otherwise can the reconstruction — built by the investigation generally — be properly understood by the defence on equal terms with Mr Ragg and the police forensic accountants?[111]
The same kind of reasoning applies in the present case in relation to the documents sought by BA.
[110](2008) 18 VR 300 (Bell J).
[111]Ibid 326 [107].
Section 39A(3)(e)
This consideration is:
(e)whether the defendant would be unfairly prejudiced if the material were not available to the court.
As stated above, this consideration raises issues relating to the central purpose of making requests for assistance on behalf of defendants.
In my view, BA would be unfairly prejudiced if the documents sought were not available to the court. The documents have a real and not speculative significance to important issues in the proceeding. They relate to the basis upon which, and the way in which, the evidence of GY, the main prosecution witness, was prepared. There are reasonable grounds for thinking that they go to GY’s credibility and the reliability of GY’s evidence. The defence has a legitimate forensic interest in obtaining access to the documents. If the documents were in the possession or under the control of the prosecution in Victoria, they would have been disclosed to the defence pursuant to the applicable law in this jurisdiction (see above), subject to resolution of any lawful objections. In respect of the documents, there would be equality of arms between the prosecution and the defence. Without being able to seek to obtain access to the documents, the conduct of BA’s defence would be prejudiced in relation to the cross-examination of GY and in other ways. This prejudice is unfair because it places BA in a position of procedural inequality in two important and related respects. First, BA would be in an unequal position of prejudice as against the prosecution. The evidence of the main witness has been prepared with the assistance of documents to which BA will not be able to seek to obtain access. BA would not have the opportunity to challenge that evidence, advance the case of the defence and damage the case of the prosecution by reference to those documents. Second, and looking at the matter from another point of view, BA would be in an unequal position of prejudice as against other accused in Victoria in this kind of situation. In the usual case, accused persons would have access to the documents under our law, subject to lawful objection. They would have the opportunity to challenge GY’s evidence, advance the case of the defence and damage the case of the prosecution by reference to the documents. BA will not.
Section 39A(4)
This provision enables the court to take into account other matters that it considers to be relevant.
In determining whether to issue the certificate, I think it is relevant to take into account Australia’s international obligation to give effect to art 14 of the ICCPR. In Tomasevic v Travaglini[112] is to be found a discussion of the general significance of the ICCPR and other international instruments in domestic law, as revealed in the authorities there considered. Among other things, it was stated that the ICCPR may inform the ‘exercise of relevant statutory and judicial powers and discretions’.[113] As regards that kind of case, which is the present kind of case, in Re Tracey,[114] Spigelman CJ and Beazley JA (Giles JA not deciding) derived the following statement of principle from the leading authorities:
[I]t is permissible to have regard to Australia's international treaty obligations for purposes of exercising a discretion, whether or not the relevant treaty has been enacted as a part of Australian municipal law. The judiciary and the executive are both arms of government. Where the latter has formally undertaken an obligation, binding as a matter of international law, even if not formally adopted as municipal law by the third arm, the legislature, the judiciary should recognise that the national interest is best served if any such international obligation is taken into account in its own decisions, when permissible and appropriate to do so.[115]
By reference to several authorities, including Tomasevic, the Chief Justice went on explain that this principle applies to the exercise of statutory discretions by judges.[116] In that connection, his Honour made clear that the word ‘discretion’ is not here used in any technical way. Rather, it ‘extends to matters which may more accurately be described as the formulation of a judgment, as distinct from exercising a power to choose’.[117] That accurately describes what a court does under s 39A(1) of MACMA. By referring to it being ‘permissible’ to have regard to Australia’s international obligations, his honour was emphasising that it was not mandatory.[118]
[112](2007) 17 VR 100, 113-15 [72]-[74] (Bell J) (‘Tomasevic’).
[113]Ibid 114 [73] (footnotes omitted).
[114](2011) 80 NSWLR 261.
[115]Ibid 267 [23].
[116]Ibid 269-70 [33]-[42].
[117]Ibid 267 [27].
[118]See ibid 268-69 [30]-[32].
As regards the right to a fair trial in art 14 of the ICCPR, in Tomasevic I explained why, in my view, judges should take Australia’s international obligations into account in the exercise of a judicial discretion when this is appropriate..[119] There is limited discussion in the authorities about just when this might be. However, in Director of Public Prosecutions v TY (No 3)[120] is to be found the following statement, which is on point:
When can an international human right stated in an unincorporated convention be taken into account in the exercise of a judicial power or discretion? As a general proposition, I think it can be if the subject matter of the case before the court comes within its scope, which is a test of relevance; if taking the human right into account is not inconsistent with any applicable legislation, the operation of which such a convention obviously does not impair; and if doing so is not inconsistent with the common law (broadly defined), the content of which, equally obviously, such a convention does not alter.[121]
[119](2007) 17 VR 100, 115 [76].
[120](2007) 18 VR 241, 244 [49] (Bell J).
[121]Ibid 244 [49].
Applying this approach, Australia’s international obligation to give effect to art 14 of the ICCPR is relevant to whether the court should determine under s 39A(1) of MACMA that it is in the interests of justice for the Attorney-General to make a request on behalf of a defendant because the subject matter and operation of that provision engages those obligations; taking art 14 into account is not inconsistent with that and other provisions of MACMA, indeed quite the contrary; and it is not inconsistent with the common law, including the common law relating to fair trials and prosecutorial disclosure, indeed equally the contrary. Although the ICCPR is not part of Australian domestic law, it is appropriate for those reasons to take art 14 into account under s 39A(4) of MACMA when determining whether to issue a certificate under s 39A(1).
As discussed above, among other things art 14 of the ICCPR stipules that all persons shall be equal before courts and tribunals and that criminal charges shall be heard and determined after a fair hearing. This general international right to a fair hearing is domestically operationalised in part through the application of the principle of equality of arms and the common law duty of prosecutorial disclosure, the provisions of the Criminal Procedure Act in relation to committals and (in Victoria) the provisions of ss 24 and 25 of the Charter. The provisions of MACMA in relation to requests on behalf of defendants in criminal matters are also means by which Australia does so.
Taking art 14 of the ICCPR into account in determining whether a certificate should be issued under s 39A(1) of MACMA assists the court to appreciate the significance of the human rights interests that are at stake for BA as an individual in seeking to obtain access to the documents in question. It also operates to reinforce my conclusion that it would be in the interests to justice to issue the certificate, for reasons I now give.
Interests of justice
The fundamental consideration in s 39A(1) is whether it would be in the interests of justice to make the request.
According to the standards of fairness and prosecutorial disclosure that apply to trials and other proceedings in relation to criminal matters (including committals) under Victorian law, the documents sought by BA are documents that accused persons in BA’s position would have access to, subject to lawful objection. Although the USA is not likely to grant a request of the Attorney-General, it may do so and in any event the likely refusal is outweighed by other considerations. If a request were not made, the documents would not otherwise be available. Although it cannot yet be said that the documents are evidentiary in nature and have probative value in relation to the likely issues in the proceeding, they relate to the cross-examination of the main prosecution witness and to advancing the defence case and damaging the prosecution case. They have real and not speculative significance in relation to those matters. They relate to GY’s credibility and the reliability of GY’s evidence. The defence therefore has a legitimate forensic interest is seeking to obtain access to the documents. The defence would be unfairly prejudiced if the material were not available to the court because BA would be placed in a position of inequality as against the prosecution and when compared with other accused in a similar position by reason of not being able to cross-examine the main prosecution witness and advance the case of the defence and damage the case of the prosecution by reference to the documents. Taking those considerations into account, a certificate should be issued. Australia’s international obligation to give effect to the fair hearing rights of accused persons charged with a criminal offence and equality of arms under art 14 of the ICCPR operate to reinforce this conclusion.
Conclusion
BA has established that it would be in the interests of justice in Australia for the Attorney-General to make a request on behalf of BA that the USA provide access to BA to the documents sought for the purposes of the criminal proceeding in relation to the charges brought against BA in Australia, including the upcoming committal. The court will issue a certificate to that effect pursuant to s 39A(1) of the Mutual Assistance in Criminal Matters Act.
‘This treaty is intended solely for mutual legal assistance between the parties. The provisions of this Treaty shall not give rise to a right on the part of a private party to obtain, suppress or exclude any evidence or to impede the execution of the request.
An identical provision appears in the US-Canada MLAT …’.
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