The Third Part in a Trilogy on the Accusatorial Trial: Lee v The Queen

By Anna Dziedzic

Lee v The Queen Case Page

In the past year, the High Court has handed down three decisions dealing with the relationship between the compulsory examination powers given to various Australian crime commissions and the principles of a fair criminal trial.

In X7 v Australian Crime Commission [2013] HCA 29, a majority of the Court held that the compulsory examination powers given to the Australian Crime Commission did not permit the ACC to examine a person charged with an offence about matters relating to the criminal charges that he or she was facing. A compulsory examination in these circumstances would fundamentally depart from the accusatorial nature of Australia’s criminal justice system. The judges in the majority refused to interpret the Australian Crime Commission Act 2002 (Cth) as working such a fundamental change to common law principles.

In Lee v NSW Crime Commission [2013] HCA 39 (Lee #1) the High Court considered the same issue but in relation to different legislation. In Lee #1 a majority of the Court held that the Criminal Assets Recovery Act 1990 (NSW) did permit a compulsory examination on matters relating to pending criminal charges. In this case, the majority considered that the words of the statute clearly disclosed an intention to abrogate the right to silence while providing adequate safeguards to ensure that any future criminal trial was conducted fairly.

The third and most recent case on this issue was decided last month. Lee v The Queen [2014] HCA 20 (Lee #2) saw the appellants in Lee #1 return to the High Court to appeal their convictions for drug and firearms offences. In a unanimous judgment, the High Court held that the appellants had not received a fair trial because confidential transcripts of their compulsory examinations before the NSW Crime Commission had been given to the Director of Public Prosecutions to assist it to prepare the prosecution’s case. The High Court held that this was a fundamental departure from the requirements of the accusatorial trial and resulted in a miscarriage of justice.

The decision in Lee #2 has been welcomed as a victory for the right to silence. In this post, I suggest that while Lee #2 does uphold the common law principles which guide the role of the prosecution in criminal trials, the case does not fully resolve the questions that arise from the close relationship between the state authorities that investigate crime and those that prosecute it. Continue reading

Voices on the Right to Silence: X7 v Australian Crime Commission

By Anna Dziedzic

X7 v Australian Crime Commission Case Page

The right to silence has both champions and critics. For some, this rule of criminal procedure is a fundamental bulwark of liberty; for others, including philosopher Jeremy Bentham, it is ‘one of the most pernicious and most irrational notions that ever found its way into the human mind’. In some ways, where you stand between these disparate views might depend on where you sit.

For those, like X7, who sit in the dock facing charges that carry a possible life sentence, having the choice whether to speak or not can provide an important way to protect their personal and legal rights. On the other hand, the work of organisations like the Australian Crime Commission (ACC) which sit at the pinnacle of the nation’s efforts to investigate serious and complex criminal activity, might be significantly impeded without the ability to lawfully require people they suspect of crimes to answer their questions. In the recent case of X7 v Australian Crime Commission [2013] HCA 29, the High Court was asked to mediate between these perspectives, providing the Court with the opportunity to consider the meaning and importance of the right to silence in Australia’s criminal justice system. Continue reading