Court OK with using covert evidence

Catharine Munro

March 5, 2009

THE High Court has approved the use of secret evidence in a surprise decision, provoking calls for a charter of rights to ensure fair trials.

In a decision that could pave the way for similar laws in NSW, the seven judges agreed unanimously that the South Australia Police could present secret criminal intelligence to a judge to stop a liquor licence being issued.

Constitutional lawyers and civil libertarians criticised the decision. "This is Alice in Wonderland stuff: you have the verdict and then the trial," said Cameron Murphy, the president of the NSW Council for Civil Liberties.

In 2005, Genargi Krasnov, a nightclub owner, failed to get a licence for a karaoke bar in Adelaide's central business district, even though his criminal record consisted only of traffic offences. Mr Krasnov went all the way to the High Court to challenge the powers of the South Australia Police after they gave criminal intelligence to the courts. He was not given the chance to see the police file or defend himself against it.

"I think it's a worrying decision," said the constitutional law expert Professor George Williams, of the University of NSW. "Normally judges are very jealous in guarding the concept of natural justice. They go out of their way to ensure people affected get all the information."

At Mr Krasnov's first appeal, in the Licensing Court of South Australia, Judge Paul Rice said he was working with "draconian" laws when he received secret evidence from witnesses. But the High Court disagreed.

The Chief Justice, Robert French, quoted Hansard to say that the laws were designed to stop the infiltration of organised crime into the liquor and hospitality industry because the current laws were not strong enough. He said the integrity of the court would not be weakened because judges could choose whether or not to accept police information.

But a senior barrister, who did not wish to be named, said judges did not have the resources to test police intelligence.

The decision, handed down last month, caught constitutional lawyers by surprise. Terry O'Gorman, the national president of the Australian Council for Civil Liberties, said prescribing the right to a fair trial in a bill of rights would prevent such laws.

Mr O'Gorman said: "This case highlights the necessity for a charter of rights." He said that even a lawyer for a suspected terrorist was allowed to see the evidence against the defendant when police apply for a controversial control order.

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