In Hussain v Minister for Foreign Affairs the Full Court of the Federal Court considered whether it was incompatible for a judge exercising the judicial power of the Commonwealth to sit on a tribunal where one side did not get to see the other side’s evidence.
As was noted in these pages the full court said, “No problem: we do this sort of thing every day”.
At about the same time, the House of Lords, the highest court in the United Kingdom, handed down a decision that indicated how strongly the common law is opposed to any form of secret trial.
The Queen v Davis did not involve any national security considerations.
The case involved a charge of murder of two men killed as a result of a single shot at 9.30 am after an all night New Year’s Eve party held in salubrious, down town Hackney.
Three witnesses who gave evidence identifying Davis as the gunman claimed to be in fear of their lives if it became known that they had given evidence against him.
To deal with the situation the trial judge made orders that the witnesses give evidence under pseudonyms; that all identifying details of the witnesses be withheld from the appellant and his counsel; that no cross-examination questions be allowed that would identify the witnesses; and that the appellant and his counsel be unable to see the witnesses or hear the true (non-artificially distorted) sound of their voices.
These orders formed the basis of the appeal which reached the House of Lords.
The five Law Lords (Bingham, Rodger, Carswell, Brown and Mance) unanimously upheld the appeal and declared the ability of an accused to confront his accusers, where their evidence is crucial, to be a fundamental principle of the common law.
The views of the judges were reflected in the quoted conclusions of the Diplock Commission, which had reported in 1972 on the topic of “Legal Procedures to Deal with Terrorist Activities in Northern Ireland”.
The commission had concluded that they could see no way of keeping the identity of witnesses secret without gravely handicapping the defence or exposing defence counsel to conflicts inconsistent with their role in the judicial process.
A 1975 committee chaired by Lord Gardiner had similarly reported that concealing the identity of witnesses would imperil the whole concept of a fair trial. (See reasons of Bingham – pic – at papa 6.)
The dangers of allowing witnesses anonymous to the accused to give evidence were the subject of a practical demonstration in the International Criminal Court for the former Yugoslavia.
In Prosecutor v Tadic (August 10, 1995), the court by a 2-1 majority (with Australia’s Sir Ninian Stephen in the minority), ruled that a witness could give anonymous testimony.
The witness gave evidence that he had seen the accused kill 30 men, including the witness’s own father.
The defence, despite the ruling, was able to discover the witness’s true identity.
When the defence managed to produce the witness’s still very much alive father in court, the fellow succumbed to the pressure and admitted that he had been trained by the Bosnian government authorities to give false evidence against Mr Tadic. (See reasons of Lord Mance at paras 91-93.)
The Law Lords acknowledged that parliament was not prevented from altering the common law as explained in Davis.
One source of limits upon legislative modification, however, is the European Convention on Human Rights. A lot of the relevant case law was also explored in these reasons, specially the reasons of Lord Mance.
Davis has lessons for Australian courts – whether or not the United Kingdom parliament can or would legislate to allow crucial witnesses to give evidence without the defence being aware of the identity of the witness.
So called judicial processes where crucial information is withheld from one party is anathema to the common law.
In this context, one wonders how the Full Federal Court in Hussain so blithely concluded that participation by chapter III judges in lopsided hearings receiving secret evidence at the behest of the then attorney general was not inconsistent with the same judges continuing to exercise the judicial power of the Commonwealth.
What could be more calculated to bring the judicial process into disrepute than one or more judges bestowing sham justice?