COURTS — CONFIDENTIAL
352. Hon MICHAEL MISCHIN to the Leader of the House
representing the Attorney General:
I first thank the Leader of the House, albeit as an afterthought to seeing some
STEM program, for finally opening the Doubleview Primary School.
The PRESIDENT: Member, was
that a statement or a preamble to your question?
Hon MICHAEL MISCHIN: It was
sort of a preamble to my question.
The PRESIDENT: You might
want to quickly get to the question.
Hon MICHAEL MISCHIN: I refer
to the advice from the government during the course of consideration of the Bail Amendment (Persons Linked to Terrorism) Bill
2018 that in criminal trials and proceedings in Western Australia —
� courts from time to time in
exceptional cases receive information by way of confidential affidavit, with
the person who is the subject of the information and their legal representative
being unaware of the ex parte procedure.
were also told that this could be so in ''any matter and at any point
within that matter'', not limited to terrorism cases.
(1) How widespread is this practice
and for how long has the Attorney General been aware of it?
(2) Under what legislative sanction
does this practice take place?
(3) How many
cases and convictions is the Attorney General aware of that were tried on
evidence secretly received by a court but not disclosed to the accused, when
did they occur, in which court did they occur, and under what circumstances?
By way of response to the preamble,
I note that the honourable member's relationship with the school he
referred to is so strong that it did not invite him, but let us get on with the
The PRESIDENT: I look forward
to your answer, Leader of the House.
Hon SUE ELLERY: Thank you,
(1) Under common
law and statute, the courts can consider certain matters ex parte, including
during the course of criminal proceedings. There is no available data to
indicate the frequency of such matters, but I understand them to be infrequent.
(2) Ex parte
applications and confidential affidavits in support of such applications may be
used in proceedings under various pieces of legislation, including the
Surveillance Devices Act 1998, the Criminal Investigation (Covert Powers) Act
2012 and the Criminal Procedure Act 2004.
(3) This data is