By Anna Dziedzic
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  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  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  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.
How did Crime Commission evidence come to be used in a criminal trial?
As part of an investigation by the NSW Crime Commission, Jason Lee and his son, Seong Won Lee, were summoned for a compulsory examination before the Commission. These examinations were ‘compulsory’ in the sense that a person being examined could not refuse to answer a question, even where the answer might tend incriminate him or her. This stands in contrast to police questioning, where a person charged with an offence has the right to remain silent.
Section 13(9) of the New South Wales Crime Commission Act 1985 (NSW) required the Commissioner to order that any evidence given during an examination be kept confidential where there is a risk that publication might prejudice the fair trial of a person who has been, or may be, charged with an offence. The Commissioner ordered that the evidence given by Jason Lee was to be kept confidential. The Commissioner did not formally make a similar order in relation to Seong Won Lee’s evidence, but it was accepted by the Court and all parties that a confidentiality order ought to have been made in his case as well.
Around the same time as the Crime Commission investigations, the Police searched the Lees’ property. They found firearms and white powder that was labelled as washing powder, but later found to contain pseudoephedrine.
Jason and Seong Won Lee were charged with drug and firearms offences. While preparing the case for trial, a solicitor from the NSW DPP emailed the Police to ask for copies of the transcripts of the examinations before the Crime Commission, ‘especially if it is something that defence are going to try & rely on — specifically that they had no knowledge that the washing powder was actually drugs’. The Police forwarded this email to the Crime Commission. The email made its way to the Commissioner who responded with ‘approved’ and copies of the transcripts were given to the DPP.
Grounds to appeal the convictions
Jason and Seong Won Lee were found guilty. While their lawyers knew that the DPP had copies of the transcripts at the time of the trial, they did not know that the transcripts had been supplied at the DPP’s request so that it could ascertain the nature of any defences that the Lees might offer until a few days before the NSW Court of Criminal Appeal was due to hear the appeals. They argued that there had been a miscarriage of justice because of the DPP’s possession and possible use of the evidence compulsorily given by the Lees to the Crime Commission. The Court of Appeal held that while the disclosure to the DPP was in breach of the NSW Crime Commission Act, no ‘practical unfairness’ had resulted because there was nothing in the transcripts that was relevant to the trial as it was conducted.
The High Court came to a different view, overturning the convictions and ordering a new trial. The High Court held that the DPP’s possession of the transcripts fundamentally altered the nature of the Lees’ trial. Because the prosecution was armed with evidence given by the defendants under compulsion, the Lees’ trial did not comply with the common law principles of an accusatorial trial. It did not matter whether or not there was in practice some unfairness in the conduct of the trial. Rather, the departure from the accusatorial process was so fundamental in this case that the Lees’ trial lost its character as a fair trial according to law.
The accusatorial trial and the common law principles that support it
Lee #2 follows X7 and Lee #1 in affirming the fundamental importance of the accusatorial trial. But just what is the accusatorial trial, and why is it so integral to Australia’s criminal justice system?
The accusatorial trial stands in contrast to ‘inquisitorial’ criminal trials conducted in continental Europe and elsewhere. In inquisitorial criminal trials, judges or other public officials are responsible for gathering the evidence and examining witnesses before making a decision. In accusatorial criminal trials, the responsibility for gathering evidence is given instead to lawyers, who then present the evidence before a judge and/or jury who conduct no investigations of their own.
Like many aspects of the common law, the accusatorial trial and the principles that support it owe more to historical evolution than design. The story is told by John H Langbein in his book The Origins of Adversary Criminal Trial (2003) (University of Melbourne online access here). Langbein argues that the admission of lawyers to criminal trials played a key role in the development of the accusatorial trial over the course of the 18th century. Prior to this time, criminal trials placed greater emphasis on the right of a person accused of a crime to a hearing in which the parties told their side of the story in person and in public. The increasing use of lawyers to conduct prosecutions, accompanied by the introduction of rewards for prosecutions, led to concerns about the reliability of prosecution evidence and the fairness of criminal trials. The courts’ solution was to permit the accused to also be represented by a lawyer and to allow the accused’s lawyer to cross-examine the prosecution’s witnesses — both practices which had previously been forbidden in criminal trials.
Anxieties about the misuse of prosecutorial power were thus a key driver in the early development of the accusatorial system. However, the accusatorial system did not provide a complete solution to this problem. In fact, it gave a huge advantage to parties that could afford to pay for lawyers. This imbalance is particularly acute in criminal trials, where the prosecuting party is the State. To redress this imbalance, the common law developed rules and principles around the new lawyer-driven trial dynamic, including the prosecution’s burden of proof and the accused’s right to silence.
Concerns about the imbalance between the state prosecutor and the individual defendant continue today. Lee #2 provides a strong statement of the continuing relevance of these common law principles to the proper positions of the prosecution and defence in a modern criminal trial (at ):
Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. … The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.
In Lee #2, the DPP’s possession of compulsorily acquired evidence relating to the charges disturbed this balance of power to such an extent that the Lees could not be said to have received the kind of accusatorial trial to which they are entitled under Australia’s system of criminal justice.
An unresolved issue raised by the accusatorial trial trilogy
X7, Lee #1 and Lee #2 all take the common law principles developed in earlier centuries to support the accusatorial trial and apply them to the modern processes of criminal investigation and prosecution.
X7 and Lee #1 concerned the legislated powers of crime commissions to investigate and respond to serious crime. These cases make it clear that legislation can authorise the compulsory examination of persons accused of a crime for particular purposes, such as gathering criminal intelligence or information about the proceeds of crime. However, because such examinations represent a fundamental departure from the principles of an accusatorial trial, in particular the accused’s right to silence, the principle of legality requires that any such legislative provisions must be clearly and unequivocally expressed. (For more on the principle of legality see my post on Lee #1.)
The focus of Lee #2 shifted away from the legislated powers of crime commissions and turned instead to the common law responsibilities of criminal prosecutors. The Court could take this approach because giving the DPP a copy of the transcripts was clearly in breach of the NSW Crime Commission Act, leaving the Court with the relatively straightforward question of what impact this had on the fairness of the Lees’ trial.
More difficult questions might arise where legislation appears to permit the disclosure of crime commission evidence to prosecutors. For example, s 266A of the Proceeds of Crime Act 2002 (Cth) seems to permit the disclosure of information obtained under a compulsory examination to federal or state prosecutors. Regulations under s 67 of the Victorian Major Crime (Investigative Powers) Act 2004 (Vic) were recently amended to list the Victorian and other state DPPs as agencies that may be given information obtained from compulsory examination, where the Commissioner deems it ‘appropriate to do so’ and it is not contrary to law.
Such information-sharing provisions potentially put the DPP in a difficult position. The High Court in Lee #2 placed the responsibility for ensuring the appropriate use of Crime Commission evidence squarely on the DPP lawyers (at ):
The prosecution has a specific role in our system of criminal justice, one which entails particular responsibilities. It is not to the point that the defence lawyers did not object or seek a stay of the proceedings… It is the prosecution which has the responsibility of ensuring its case is presented properly and with fairness to the accused. … The prosecution should have enquired as to the circumstances in which the evidence came into its possession and alerted the trial judge to the situation, so that steps could be taken to ensure that the trial was not affected.
Perth Barrister Edward Greaves has suggested that even if particular legislation permits the disclosure of information obtained during a compulsory examination to the DPP, such disclosure may nonetheless result in a miscarriage of justice. At the very least, the Court’s remarks in Lee #2 suggest that a DPP in possession of compulsorily obtained evidence — however acquired — must take steps to ensure the fairness of the trial, for example by informing the court of the prosecution’s access to such evidence and quarantining it from the DPP lawyers involved in the trial.
This approach accords with the significant role played by lawyers in the accusatorial trial, and the particular responsibilities that the common law places on the prosecution. However, it does not fully resolve the issues arising from the more recent relationship between criminal investigators exercising legislated powers and criminal prosecutors. I suspect that questions about legislative provisions that appear to permit information obtained from compulsory examinations to be shared with DPPs are more likely to be resolved using rules of statutory interpretation rather than the court’s inherent powers to ensure that a trial is fair. And this will take us away from the relatively straightforward application of common law principles to a criminal trial that we see in Lee #2 and bring us back to the complexities of the principle of legality and the unresolved tensions arising from X7 and Lee #1.
AGLC3 Citation: Anna Dziedzic, ‘The Third Part in a Trilogy on the Accusatorial Trial: Lee v The Queen’ on Opinions on High (17 June 2014) <https://blogs.unimelb.edu.au/opinionsonhigh/2014/06/17/dziedzic-lee-2/>.
Anna Dziedzic is a Research Fellow at Melbourne Law School.