Case: R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott [1933] HCA 30 ; (1933) 50 CLR 228
Outcome: referred to
was made to what Evatt J said in R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott [1933] HCA 30 ; (1933) 50 CLR 228 at 256, when referring to a provision that the Tribunal was not bound by the rules of evidence: 'But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice".' The applicant submitted that in the present case, the Tribunal's reliance on a large amount of evidence of a general nature, consisting predominantly of hearsay, is made all the more unfair given the highly prejudicial nature of that material and the inability to adduce evidence to the contrary. Regardless of the reasons for which much of that evidence was de-identified (for privacy reasons, say, or because it referred to an informer), the outcome, the applicant submitted, was that there was a serious denial of procedural fairness. The applicant submitted that it was not open to the Tribunal, in the exercise of the power conferred by the statute, to consider (or make findings based upon) the truthfulness or the seriousness of the matters for which the applicant had been the subject of complaint on the basis of such objectionable evidence. There was an obligation on the Tribunal to seek specific comment from the applicant about the truthfulness or the seriousness of each of the matters which were taken into account. This was plainly not possible given that the evidence was general in nature and the particulars of the allegations were anonymous. This may partly explain why the applicant was not cross-examined at all in relation to some of the allegations or in a fair manner in relation to others. In the applicant's submission, this does not justify the failure but merely highlights the unfairness of the Tribunal relying on such evidence. Turning to the allegation in ground 2, that the applicant was denied procedural fairness in relation to police allegations that she was amongst other things 'the head of the drug trade' because such allegations were not put to her fairly or at all, including during her cross-examination, the applicant made the following observations: (1) At p 168 line 30 of the hearing transcript, Detective Inspector Galea gave evidence that based on intelligence, although there were 'other persons, obviously, dealing drugs', the applicant was 'a major player, a mid-level dealer' of drugs 'in the Airds area' and that she was 'a predominant player there'. The witness repeated at p 171 line 9 of the transcript that the applicant was a 'significant player' in the drug trade and later under cross-examination that she was 'the head of the drug trade' based on police 'intelligence' (p 174 line 34). The Tribunal referred to this evidence at [129] of its reasons and appeared to accept it (at [161], [191] [192]). (2) The police witness also invited the Tribunal to accept that there had been fewer drug reports relating to Airds since the applicant had been detained in Villawood Immigration Detention Centre, that there had been a reduction in the drug trade and social tension and that violent assault and robbery had ceased altogether (seemingly to bolster the claim that she was the head of the drug trade). The Tribunal was further asked (in final submissions) to infer that the number of intelligence reports impugning the applicant far exceeded the number of charges against her because victims were reluctant to complain for fear of reprisals (at [133] and transcript at p 180 lines 3 22). (3) The Tribunal appeared to accept these propositions (at [191] [192]), notwithstanding that the relevant police witness conceded under cross-examination that he had no statistics to prove those assertions and conceded that intelligence is 'not absolute fact' and said that he could not comment upon, and did not know if any informants had a vendetta against the applicant. The applicant submitted that there was no cogent evidence before the Tribunal to substantiate these highly prejudicial submissions; nor were these matters put to the applicant during cross-examination. The allegations that the applicant was a 'major player' were only raised in Detective Inspector Galea's evidence towards the end of the hearing. The applicant was given no opportunity to address that evidence, either before the hearing or during the hearing. Although she was taken to her criminal record and it was put to her that she had dealt drugs, it would not have been obvious to her that she was alleged to be a leader of the criminal drug trade. Nor was she legally represented so that submissions could be made about the admissibility or permissible use of that evidence.