By Anna Dziedzic
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  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.
X7 was arrested and charged with federal drug and proceeds of crime offences. While in custody, he was summoned to answer questions before an examiner from ACC, including questions about the offences with which he had been charged. X7 refused to answer the examiner’s questions and applied to the High Court for an injunction to prevent the ACC examining him. No one other than the ACC, X7 and his lawyers know his real identity, because the ACC has forbidden X7 from revealing the existence of his summons to anyone else.
The Australian Crime Commission Act 2002 (Cth) permits an examiner to conduct compulsory examinations for the purposes of a ‘special investigation’ (ie, an investigation into criminal activity where ordinary police methods are not likely to be effective). Under the Act, a person being examined is required to answer all questions put by the examiner; refusal or failure to do so is an offence, punishable by up to five years in prison. Where a person claims that an answer might tend to incriminate him or her, the person must still answer the question but the answer cannot be used as evidence against him or her in a criminal proceeding (this is known as ‘use immunity’). The Act also imposes a duty on the examiner to direct that information given during the examination must not be published or made available to specified persons where there is a risk that publication or disclosure might prejudice the fair trial of a person.
The question for the five-member bench of the High Court was whether the ACC examiner could lawfully require X7 to answer questions about the offences for which he had been charged. The stated case separated this question into two. First, as a matter of statutory construction, did the ACC Act authorise the compulsory examination of a person charged with an offence about the subject matter of those charges? Secondly, as a matter of constitutional law, if the ACC Act did authorise compulsory examination in such circumstances, did the Act thereby allow the executive to interfere in pending judicial proceedings in contravention of ch III of the Constitution?
On the first question, a majority of the Court — Justices Hayne and Bell, with whom Justice Kiefel agreed — held that the ACC Act did not permit the compulsory examination of X7 about matters relating to the charges he was facing. In dissent, Chief Justice French and Justice Crennan held that the ACC Act did authorise such an examination.
The statute’s silence
The provisions of the ACC Act do not expressly deal with X7’s situation, that is, the Act does not explicitly state that a person charged with an offence may be summoned by the ACC for compulsory examination. In such circumstances, courts employ techniques of statutory construction to determine the intended meaning of the statute. One such technique is the ‘principle of legality’, which is based on the assumption that the legislature does not intend to restrict a fundamental freedom or principle or to depart from the general system of law without expressing that intention with ‘irresistible clearness’.
For the majority, the fundamental freedom, principle or general system of law engaged in this case was the accusatorial nature of the criminal justice system. By ‘accusatorial’ the majority meant a criminal process in which it is for the prosecution to decide the charge to be laid against the accused and to prove all elements of that charge at trial. The accused, meanwhile, has a ‘right to silence’: he or she is under no obligation to make any answer to the charge, either before or during the trial. The majority considered that requiring a person to answer questions about matters relating to pending charges would fundamentally alter the accusatorial nature of Australia’s criminal justice system. According to the principle of legality, such a radical alteration of Australia’s criminal justice system requires clear words, and in their absence, the majority refused to interpret the ACC Act as authorising the compulsory examination of a person charged with, but not yet tried for, an offence about the subject of those charges.
In contrast, Chief Justice French and Justice Crennan held that the provisions of the ACC Act clearly contemplate the examination of persons after charges had been laid. This construction followed from an analysis of the functions of the ACC to investigate serious and organised crime as well as from the inclusion in the Act of safeguards to ensure that the trial of a person would not be prejudiced as a result of the examination. These included the use immunity in relation to self-incriminatory statements and what their Honours called the ‘protective provisions’, namely the examiner’s duty to restrict the publication and disclosure of any information obtained in the examination where necessary to ensure the fair trial of a person who has been or may be charged with an offence.
The Constitution’s voice
Because they concluded that the ACC Act did not authorise the examination of X7, the majority did not have to consider the second, constitutional, question in the stated case. Chief Justice French and Justice Crennan, however, did engage with this question. Their Honours devoted most of their attention to the argument that the ACC’s examination powers constituted executive interference with a pending judicial proceeding, and in particular with due process rights entrenched in ch III of the Constitution. In this way, the minority also had to deal with questions about what the accusatorial nature of criminal justice requires. Once again, their Honours focused on the safeguards included in the ACC Act, this time to inform their view that while the Act abrogated the privilege against self-incrimination, it preserved the accusatorial process and right to fair trial through the operation of the protective provisions. In this regard, the minority suggested that use immunity alone might not be enough to ensure a fair trial, because the prosecution might still use evidence derived from compulsorily obtained information. However, because the publication and disclosure restrictions served to protect against both the direct and indirect use of information obtained at an examination, the provisions did not impose an unfair burden on the accused or upset the accusatorial nature of criminal process.
Listening to the Court’s views on silence
It is clear that the judges came to different views on the construction of the text of the ACC Act and the application of the principle of legality. The question I want to focus on here, however, is whether the judges also express differing views on the content of the right to silence or the accusatorial process more generally.
The right to silence (which allows people suspected of crimes to refuse to answer any questions) and the privilege against self-incrimination (which allows everyone to refuse to answer incriminating questions) are said to serve a range of purposes. One set of rationales is concerned to protect the individual rights of the accused. The right to silence has been said to protect against the invasion of privacy and uphold the inviolability of human personality. The rule is also said to avoid confronting the accused with the ‘cruel trilemma’ of choosing between being punished for refusing to testify, as a result of admitting guilt, or for perjury. A second category might be called ‘structural’ rationales, because they justify the right to silence and the privilege against self-incrimination on the basis that they are necessary to realising other fundamental features of the criminal justice system, such as the accusatorial process, the presumption of innocence and the right to a fair trial.
Both the majority and minority judgments focus primarily on structural rationales. This is apparent in the minority’s concern about safeguarding the fair trial by regulating the way in which information acquired during a compulsory examination may be used at trial; and in the majority’s invocation of the accusatorial process as the fundamental principle on which the ACC Act is to be interpreted.
However, despite structuring their argument around maintaining the accusatorial process, the judgment of Justices Hayne and Bell discloses some concern for individual rights justifications for the right to silence and privilege against self-incrimination, which also serve to distinguish their understanding of the right to silence from that of the minority. Their Honours emphasise that the privilege is not just a rule of evidence governing how information may be used in a trial, but a ‘basic and substantive common law right’. In this regard, their Honours stress that even if the information cannot be used in any way at all, the accused’s ability to put the prosecution to proof of the charge will be compromised.
Further, and perhaps in a distant echo of the ‘cruel trilemma’ rationale, Justices Hayne and Bell frame their key objection to the compulsory examination of a person charged with an offence in terms of the position in which this places the accused (at , emphasis in original):
No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution’s case … The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid.
The minority’s emphasis on structural rationales might derive from their consideration of this issue from a constitutional perspective, which focuses on protecting the integrity and role of the judiciary as a separate institution. For the majority, however, this structural focus was not inevitable, because the principle of legality may also be applied to legislation that affects individual rights. However, casting the question in terms of whether legislative provisions create a new exception to the accusatorial process provides a potentially broad standard for the review of legislation, as a wide range of procedural rules may be regarded as essential components of the accusatorial process. This, combined with an expansive application of the principle of legality, potentially opens the door to stricter review of legislative variations and exceptions to established principles of criminal procedure.
As such, lawmakers would do well to pay attention to the judgments of both the majority and minority. Following the majority’s decision, legislatures which intend to qualify or depart from the accusatorial process of the criminal justice system will need to ensure they do so using clear language. However, lawmakers should also listen to the judgment of the minority and ensure that any legislative departures from the accusatorial process are also accompanied by appropriate protective provisions to safeguard the right to a fair trial. And, on any view, such legislative clarity and concern for the right to silence is to be welcomed.
AGLC3 Citation: Anna Dziedzic, ‘Voices on the Right to Silence: X7 v Australian Crime Commission’ on Opinions on High (15 August 2013) <https://blogs.unimelb.edu.au/opinionsonhigh/2013/08/15/dziedzic-x7/>.
Anna Dziedzic is a Research Assistant at Melbourne Law School.