Right to silence: court considers privilege against self-incrimination

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IMG_0893The Australian High Court recently considered the right to silence and the privilege against self-incrimination in Lee v New South Wales Crime Commission.

A number of Australian statutes have sought, in certain circumstances, to remove individuals’ right to silence by conferring on courts and investigative bodies the power to compel individuals to answer questions about whether they have engaged in criminal conduct. For example, the Queensland government recently foreshadowed the introduction of new laws that would empower its Crime and Misconduct Commission to compel examinees to answer questions under the threat of a mandatory jail term.

Unlike the United States, Australia does not have a constitutionally guaranteed right to silence on the grounds of potential self-incrimination – it is not possible in Australia to “plead the fifth”. While at common law individuals do have certain rights, including the right to silence and the privilege against self-incrimination, those rights are not absolute and may be subject to a contrary statute enacted by Parliament that may infringe on those rights in certain circumstances.

The Criminal Assets Recovery Act (NSW) is one such statute. Sections 13 and 13A of the act operate to override obligations of confidence, legal professional privilege and the privilege against self-incrimination. Those sections apply to examination under Section 31D (ie, in relation to a confiscation order).

The issue before the High Court was whether the New South Wales Supreme Court was authorised to make an order under Section 31D of the act that the appellants be compulsorily examined in circumstances where there was a risk that the subject matter of the examinations might overlap with the subject matter of separate criminal proceedings being faced by the appellants.

The High Court discussed the application of ‘direct use immunity’ and ‘derivative use immunity’. Under the principle of direct use immunity, answers given to compulsory questioning are not admissible in subsequent criminal proceedings. However, unless there is derivative use immunity, the answers may be used to discover evidence that is admissible against the person providing the answer.

In a dissenting judgment, Justice Hayne concluded (at 79) that asking questions and compelling answers about the pending charge interferes with the conduct of an accusatorial trial, embarrasses the defence of the accused and introduces fundamental alterations to the accusatorial process of criminal justice.

A majority of the high court found that the New South Wales Supreme Court was authorised to order the examination, and dismissed the appeal. Chief Justice French, who delivered one of the majority judgments, noted (at 36) that examinations under Section 31D would be subject to judicial control and discretion. He further noted (at 49) that:

Judicial sensitivity to the impact of an examination on the accusatorial character of pending criminal proceedings can be expected to inform whether an order should be made in the particular circumstances of the case and, if an order be made, the way in which any subsequent examination is conducted. Its judicial character will attract the inherent and express powers of the Supreme Court to protect against misuse of its process and against unfair prejudice to an examinee.

The minority considered itself bound by the court’s earlier decision in X7 v Australian Crime Commission, which concerned similar legislation – namely, the Crime Commission Act 2002 (Cth), which governs the gathering and dissemination of criminal information and intelligence by an executive authority in relation to matters relating to federally relevant criminal activity. One of the bases on which the majority distinguished X7 v ACC was that the Criminal Assets Recovery Act (NSW) differed in material ways from the Crime Commission Act.

Source: International Law Office

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