Finessing the Fair Trial for Complainants and the Accused: Mansions of Justice or Castles in the Air?


Finessing the Fair Trial for Complainants and the Accused: Mansions of Justice or Castles in the Air?



HEARSAY REFORM AND the related right to confrontation have recently attracted the attention of apex courts in Strasbourg,1 North America2 and England and Wales,3 and sparked renewed debates amongst commentators about the procedural requirements of a fair criminal trial. The major focus4 concerns courts’ attempts to reconcile the goals of ensuring trials are both fair and well-informed when faced with unavailable witnesses and, in their stead, rely upon available hearsay statements. It is fertile ground for deliberation, as illustrated in the search for sweet compromise by courts and legislatures discussed in this chapter. Singly and collectively these attempts reveal the massive challenge in identifying an apparently elusive formula to satisfy the fair trial right to confront one’s accusers in the face of key witnesses who have died, fled or refused to testify. There are vastly differing philosophies underpinning responses to these issues. One commonality however is that, in recent years, many common law systems have introduced sweeping legislative reforms in an effort to fashion their own local regimes for regulating the admission of reliable hearsay. Australia’s legislature and courts have followed the common law trend of shifting the traditional exclusionary rule in a markedly pro-admissibility direction.

This chapter throws up new issues by addressing the application of doctrine, not its boundaries. Its locus is Australian hearsay law and its focus is upon the accused and upon the complainant of domestic or sexual violence5—both beneficiaries of unique (though different) special testimonial protections. A snapshot of reported Australian cases dealing with unavailable witness hearsay since 19956 is revealing. It shows, first, that the accused, defence witnesses and vulnerable victims7 fare poorly when they8 seek access equal to other claimants to a hearsay ‘voice’ in the courtroom. Secondly, it reveals numerous apparent contradictions in Australian courts’ approaches to these key criminal trial protagonists and, in particular, the lack of availability to them of Australia’s ‘witness unavailable’ hearsay exception, section 65 of the uniform Evidence Acts. The scenario, we say, is reminiscent of sceptical attitudes towards complainants and defendants which had supposedly been purged from the modern law. In contrast to earlier manifestations of judicial mistrust, twenty-first-century doubts are not etched in legal doctrine. They pass under the radar, in the selective application of Australia’s expansive hearsay exceptions. This selectivity is revealed through the notably uneven application of hearsay exceptions with respect to our two groups of trial participants who are seemingly being left behind by Australian courts’ new-found enthusiasm for hearsay evidence.

There is an apparent incongruity in the complainant and the accused sharing in common this differentiated and parsimonious treatment under the unavailable witness hearsay exceptions. They are, after all, placed inevitably on opposite sides of the adversarial battle and generally perceived to possess diametrically opposed fair trial interests. It is our conclusion that it is neither coincidental nor is it necessarily a quirk of Australian practice that the accused and the complainant of sexual or domestic violence are invisible in the list of those trusted by courts to be heard without entering the witness box. In our view it reflects the de facto retention of age-old and unreconstructed suspicions of the testimonial veracity of the accused and domestic and sexual violence complainants within the context of Australia’s modernised law of hearsay.

The statutory provisions are not the root of the problem. Rather, the fault lies elsewhere. First, there appears to be an issue regarding prosecutors’ unwillingness to exploit hearsay exceptions for complainants and second, there is an issue with judges’ unwillingness to utilise hearsay exceptions for the accused. This state of affairs raises serious concerns as to whether Australian legal practice is recreating its historical past. In doing so, it provides food for thought for other similar jurisdictions.9

Finally, this chapter illustrates important differences between human rights and common law criteria of a pre-eminently oral trial process. Most prominently, human rights instruments treat the right to confrontation as a mechanism of defence (not party) empowerment. They emphasise the defendants’ rights to due process as an important part of the fair trial and oral process package. In contrast, the common law does not seek to embed defendant-focused protections through its traditional hearsay exceptions. Instead it traditionally treats the right to cross-examination as the pre-eminent test of all witnesses’ testimony.


Human rights legislation remains a work-in-progress in Australia. Victoria and the Australian Capital Territory are the only Australian jurisdictions to have legislated comprehensive human rights protection. Both these jurisdictions also apply Australia’s uniform Evidence Acts.

Because Australia has no comprehensive national human rights legislation encompassing criminal process rights the international human rights treaties to which Australia is a signatory, and decisions of the United Nations Human Rights Committee under those treaties, constitute the most significant human rights reference points for most Australian courts.10 For present purposes, we may note that Australia is a party to the International Covenant on Civil and Political Rights (ICCPR);11 the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD);12 the Convention on the Elimination of Discrimination Against Women (CEDAW);13 the Convention on the Rights of the Child (CRC);14 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).15 Dedicated criminal process rights sit within a broader human rights framework comprising dignitarian rights given general expression in the Preamble to the ICCPR, defendants’ rights to equality of treatment before the courts, the right to minimum fair trial guarantees, the right to the presumption of innocence, and the right to remain silent. A representative expression of the rights of most immediate concern for our discussion can be found in the following parts of Articles 7 and 14 of the ICCPR:16

7. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment …

14.1. All persons shall be equal before the courts and tribunals.

14.2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

14.3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality …

(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.… [and]

(g) Not to be compelled to testify against himself or to confess guilt.

Our conception of a fair trial incorporates a triangulation of the interests of the accused, the victim, and the rather more protean notion of community interests. This has become a fairly orthodox view in human rights adjudication,17 marking a shift away from the traditional defendant-centric fair trial guarantees articulated in Article 14 of the ICCPR.18 It recognises and adopts human rights jurisprudence promoting recognition of victims’ and witnesses’ fair trial rights,19 building on the right to dignified treatment,20 the right to be protected from degrading treatment, the right to security of the person,21 the right to life and the right to privacy.22

Acknowledging and respecting the fair trial rights of victims and witnesses does not detract from the traditional fair trials rights of the accused or diminish their need for special treatment. It does not alter the fact that defendants face the might of the State, possibly at peril of their liberty. Yet global models of fair trial rights, such as Article 14 of the ICCPR and Article 6 of the ECHR, are creatures of the 1950s and 1960s. Today these need to accommodate the legitimate expectations of vulnerable witnesses to be protected from degrading questioning and from the trauma associated with reliving the crime and confronting the accused in court.23


For the persuasive reasons rehearsed by Mike Redmayne in Chapter 12 of this book, the default mode of evidence presentation in criminal trials should be the oral presentation of evidence in a public forum. This default setting should alter only where there are convincing reasons to favour a non-oral or a non-public presentation of certain evidence. One consideration with respect to the assumption of orality is electronic recording technology. Electronic recording of pre-trial statements is both easy and inexpensive and in Australia audio-visual recording is common for suspects’ and complainants’ statements made during police interviews. As discussed further below, compared to traditional forms of reporting, electronic technology greatly enhances the reliability and probative value of out-of-court speech and writing, many kinds of which would formerly have been inadmissible hearsay at common law.

It is generally recognised that criminal proceedings would grind to a standstill if courts were precluded from relying on hearsay statements in appropriate cases, and it has always been recognised by the common law that justice is enhanced by the existence of some hearsay exceptions.24 More recently, Victoria’s Charter of Rights and Responsibilities 2006 affirms that the accused’s right to confront witnesses is not absolute.25 As Charron J observed in the Canadian Supreme Court case of R v Khelawon:26

[T]he extent to which hearsay evidence will present difficulties in assessing its worth obviously varies with the context. In some circumstances, the evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding. Hence, over time a number of exceptions to the rule were created by the courts.… [T]raditional exceptions to the exclusionary rule were largely crafted around those circumstances where the dangers of receiving the evidence were sufficiently alleviated.… When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails.

(a) Comparative Jurisprudence

As mentioned, the prevailing trend across the common law world is towards greater liberality in the admission of hearsay statements from unavailable witnesses. In New Zealand, for example, hearsay from unavailable witnesses (other than the accused) is admissible where ‘the circumstances relating to the statement provide reasonable assurance that the statement is reliable’.27 Under the admissibility framework introduced by the Criminal Justice Act 2003, hearsay evidence in England and Wales is now subject to a general inclusionary exception in the ‘interests of justice’28 and there is also fairly comprehensive provision for admitting the first-hand hearsay statements of absent witnesses,29 including those who do not give—or cannot continue giving—evidence through fear.30 As the above quotation from Charron J in R v Khelawon indicates, the Supreme Court of Canada has innovated a flexible inclusionary exception for presumptively reliable hearsay at common law.31

Viewed against this backdrop, the US position represents something of a counter-trend, in which the constitutional right of confrontation places tangible constraints on any liberalisation of the hearsay prohibition. The US Supreme Court’s interpretation of the Sixth Amendment Confrontation Clause permits the admission of a declarant’s ‘testimonial’ statements only if the declarant testifies.32 An obvious parallel can be drawn with the European Court of Human Rights’ interpretation of the requirements of Article 6(3) of the ECHR. This appears to imply a blunt corroboration-like requirement if a conviction might otherwise be based ‘solely or to a decisive extent’ on an untested hearsay statement.33 Where there is little other incriminating evidence, such as in a typical rape or domestic violence prosecution, Strasbourg’s requirements for confrontational fairness operate from an initial standpoint that is far more exacting than those stipulated by legislatures and courts in England and Wales,34 Australia, New Zealand and Canada.

In broad terms, human rights principles are infiltrating common law jurisdictions at a varying pace and they hold out some promise for significant positive change. However, in the context of concern for vulnerable witnesses the jurisprudence of the European Court of Human Rights and post-Crawford decisions in the US both demonstrate that the ‘right of confrontation’ is something of a double-edged sword.

(b) Australian Uniform Evidence Acts

Criminal justice in Australia is largely state-based, as in other federated jurisdictions, like the United States. Australian evidence law, including the law of hearsay, is governed by a systematic modernisation of common law principles known collectively as the uniform Evidence Acts.35 Business records and related exceptions aside, the main absent witness exception under the Australian uniform Evidence Acts is contained in section 65, which provides in material part:

65(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not
apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:

(a) was made under a duty to make that representation or to make representations of that kind, or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or

(c) was made in circumstances that make it highly probable that the representation is reliable, or

(d) was:

(i) against the interests of the person who made it at the time it was made, and

(ii) made in circumstances that make it likely that the representation is reliable.…

(8) The hearsay rule does not apply to:

(a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or

(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

By section 62 of the uniform Evidence Acts, the declarant must have seen or heard (or otherwise perceived) those matters asserted in their out-of-court statement. This limits the scope of the section 65 exceptions to first-hand hearsay. Except in relation to court transcripts,36 section 65 requires that the testifying witness must have perceived the absent declarant’s hearsay statement directly. The further conditions imposed by subsection (2) mirror well-established common law hearsay exceptions for statements against interest, res gestae, and statements made in furtherance of a duty. In addition, section 65(2)(c) introduces a broad exception for representations ‘made in circumstances that make it highly probable that the representation is reliable’. Finally, the broadest exception of all in terms of reliability preconditions is section 65(8). It is restricted to defence evidence only and it permits the admission of first-hand hearsay evidence adduced by the accused, as long as it is given by a person who directly saw or heard the making of the representation. Its terms permit the admission of previously inadmissible, but potentially exculpatory proof of innocence, such as third party confessions (as in R v Blastland)37 or, as in Sparks v R,38 a victim’s description of a perpetrator that bears no resemblance to the accused.

There are no express inclusionary discretions in the uniform Evidence Acts, but there are two general exclusionary discretions. The first is a statutory version of the familiar Christie-style39 exclusionary ‘discretion’40 applicable to unfairly prejudicial prosecution evidence. The second is contained in a statutory formulation of legal relevance that permits the exclusion of relevant but distracting, time-wasting or unfairly prejudicial evidence.41 Although the hearsay exceptions are broad in scope, the comparatively prescriptive style of drafting adopted in the uniform Evidence Acts fosters a relatively mechanical judicial approach to determining the admissibility of hearsay statements. At the same time however, it promotes transparency in admissibility determinations, and this facilitates assessing how the provisions are applied in particular contexts.

R v Suteski (No 4)42 represents the high-water mark of Australian courts’ willingness to receive hearsay from ‘unavailable’ witnesses. The key evidence was from Witness B who was in gaol for his part in the contract killing allegedly perpetrated by Sneza Suteski. Previously, Witness B had given a video-recorded police interview in which he claimed that Suteski had instructed him to ‘stab’ the deceased, to ‘bash him, kill him if you want’, with ‘words to the effect of break his knees or his legs’. However, when Witness B was brought to court, he refused to testify in accordance with his police statement, apparently because he no longer wished to cooperate with the authorities, or at any rate did not wish to be seen to be doing so. The judge ruled that Witness B’s statement could be admitted under section 65 of the uniform Evidence Act, since ‘all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success’.43 This ruling was upheld on appeal. It did not seem to matter that, in traditional currency, Witness B looked more like an unwilling than an unavailable witness. This decision has been widely cited and applied.44 The Australian High Court’s refusal of special leave to appeal, on the basis of insufficient prospects of success, in a hearing lasting less than 20 minutes, suggests that there is little likelihood of the Suteski precedent being displaced for the foreseeable future.45

The ruling in Suteski has fuelled a lack of timidity in applying section 65. Its endorsement by other courts is grounded in the view expressed often by Australian appellate courts that they must respect the legislative intention evinced by section 65 and the Acts’ formula of reliability assurances. They must therefore admit evidence falling expressly within the unavailable witness exception, even if the evidence is sole or decisive in sustaining a guilty verdict. Courts have reiterated that the Acts’ intention to admit hearsay evidence from absent witnesses is to be respected46 and they have cautioned against exercising the exclusionary discretions ‘to emasculate provisions in the Act’47 in the face of Parliament’s clear intentions to provide exceptions to the hearsay rule. Deceased,48 demented49 or seriously ill50 prosecution witnesses are the most common categories of unavailable witness. Their evidence has been admitted in the most serious of crimes and with respect to the most contentious of issues. In murder and manslaughter trials, for example, section 65 has permitted admission of statements of deceased declarants detailing the incident giving rise to the charge,51 identifying the perpetrator,52 previous episodes of violence by the accused, the injuries sustained,53 the nature of the relationships between the accused and the deceased, and the deceased’s fear of the accused and his threats.54 In a sentencing case, the court admitted previous statements of a murder victim that the accused had threatened and acted violently towards her.55

Australian courts have been generous in classifying a prosecution witness who is untraceable or has disappeared (possibly out of fear) as ‘unavailable’ under the uniform Evidence Acts. If the witness’s testimony forms part of a transcript of committal proceedings, confrontation opportunities have been satisfied and the admission of the (hearsay) transcript is relatively unremarkable.56 In R v Kazzi57 and in R v Morton58 victims of armed robberies had made police statements, but had subsequently travelled overseas. Their statements were successfully tendered under section 65. This general trend towards receiving more hearsay in criminal trials, which Australia shares with most of the common law world, is very much in sympathy with the modern zeitgeist.

However, as we will see, the Australian courts’ approach to admitting hearsay statements under section 65 has not been uniformly so receptive.