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


Henning, T and Hunter, J, Finessing the Fair Trial for Complainants and the Accused: Mansions of Justice or Castles in the Air?, Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions, Hart Publishing Ltd, P Roberts and J Hunter (ed), Oxford and Portland, Oregon, pp. 347-368. ISBN 978-1-84946-172-6 (2012) [Research Book Chapter]

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Hearsay reform and the related right to confrontation have recently attracted the attention of apex courts in Strasbourg, North America and England and Wales, and sparked renewed debates amongst commentators about the procedural requirements of a fair criminal trial. The major focus 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 violence- both beneficiaries of unique (though different) special testimonial protections. A snapshot of reported Australian cases dealing with unavailable witness hearsay since 1995 is revealing. It shows, first, that the accused, defence witnesses and vulnerable victims fare poorly when they 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 exception·s 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.

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.

Item Details

Item Type:Research Book Chapter
Keywords:Strasbourg, North America, England, Wales, Australia, apex courts, fair trial, human rights, defence, protection
Research Division:Law and Legal Studies
Research Group:International and comparative law
Research Field:International humanitarian and human rights law
Objective Division:Law, Politics and Community Services
Objective Group:Justice and the law
Objective Field:Criminal justice
UTAS Author:Henning, T (Associate Professor Terese Henning)
ID Code:81827
Year Published:2012
Deposited By:Law
Deposited On:2013-01-09
Last Modified:2017-11-21
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