I. INTRODUCTION ¹

5.1 We have already referred to the relationship between rules of procedure and the substantive criminal law, and to the manner in which the effectiveness of law enforcement agencies on the one hand, and protection of the liberties of the individual on the other, may be influenced by changes in those rules. Before passing to more specific issues, we wish to consider that relationship a little more closely. In so doing, we raise, in broad terms, questions touching the principles which ought to influence the changes to which we refer. We see debate about matters of this kind is being an specially important part of our work on this reference, and we welcome comments on both the questions and the principles.

5.2 In this chapter, we point to two possible approaches to an examination of the principles upon which criminal procedure should be based. One approach is directed at striking the balance between the need for effective law enforcement agencies and the need for the liberties of the individual to be protected. The other approach which is not necessarily inconsistent, seeks to test particular principles, and particular proposals for change, against criteria cush as “fairness”, “openness”, “accountability”, and “efficiency”.

II. THE OBJECTIVES OF CRIMINAL PROCEDURE

5.3 No system of criminal justice can ensure the conviction of all who are guilty and the acquittal of all who are innocent. Human fallibility and the practical impossibility of always achieving proof with absolute certainty, mean that inevitably some who are guilty will be acquitted, or some who are innocent will be convicted, or that both will occur. The philosophy underlying the system of criminal justice under which we operate has always acknowledged that, important though it is that the guilty be convicted, that objective ought not be pursued in a manner which will create an unacceptable risk of wrongful conviction of the innocent. This philosophy, and our respect for the liberty of the individual, have been reflected in a number of principles which are now regarded as fundamental to, and an essential part of, our criminal justice system. These principles are:

• When any person is charged with a criminal offence, lie or she is presumed to be innocent until his or her guilt has been established.
• The standard of proof required is proof beyond reasonable doubt.
• People who are, or who may be, charged with a criminal offence arc entitled to remain silent in relation to the charge or possible charge.
• People shall not be required to answer any questions if the answers may tend to incriminate them.

These principles are commonly referred to as, respectively, the presumption of innocence, the standard of proof, the right to silence, and the privilege against self-incrimination.

5.4 In addition to these principles, and deriving from them there are a number of rules which have become established within our system. These include the following:

• No suspect, when questioned by an investigating officer, is required to answer questions.
• If that suspect is subsequently charged and tried, no adverse inference may be drawn from the refusal to answer questions.
• Any person charged with a criminal offence may, by pleading not guilty and making no further answer to the charge, require that the prosecution prove its case.
• A plea of not guilty puts in issue between the parties all matters which must be proved to establish the accused persons guilt.
• The accused person at his or her trial need not say anything.

5.5 There are other basic rules which are not derived from the general principles stated above but which nonetheless have become entrenched. Their establishment is readily understood in terms of the historical development of the common law, but in some quarters they are now under challenge. These rules include the following:

• An accused person at his or her trial on indictment may make an unsworn statement without becoming a witness and liable to cross-examination.
• If an accused person opts not to give evidence, no comment on that fact may be made either by the trial judge or by the crown prosecutor.
• The spouse of an accused person is not a compellable witness.
• No comment may be made upon an accused person’s failure to call his or her spouse.

5.6 This system, based as it is on the principles and rules referred to above, is often criticized. Much of the criticism is made by people who test its effectiveness by its capacity to arrive at “the correct conclusion”. On this view, the system is singularly ineffective in that it requires a determination to be made without any assistance from or indeed any necessary participation by, the accused person, and the accused person often has the greatest store of relevant information, and often knows best the true answer to the charge. In this respect, the system is often contrasted with the Continental inquisitorial system.

5.7 These principles and rules are, however, defended with equal fervour by those who support the proposition that priority must be given to the maintenance of personal freedoms and the protection of the innocent. They point to the great advantage enjoyed by the prosecution because of the facilities and resources available to it. They see these advantages as a further reason for retaining rules which serve to counter-balance a system that would otherwise be weighted in favour of the prosecution. Indeed, they see the rules as providing protection for the individual against abuse of official power and wrongful conviction.

5.8 Even within common law jurisdictions which share our philosophy and history, some changes have been made with regard to some of these rules; and some of them are not of universal application even within our own system. The position concerning the unsworn statement has been the subject of change in some other common law jurisdictions. In Victoria, for example, a judge in his summing up can comment if the accused makes a statement from the dock not on oath There have even been encroachments upon the presumption of innocence by the legislature, and by judicial decisions. Illustrations include section 417 of the Crimes Act 1900 (proof of “lawful authority of excuse” to lie on the accused in some cases), use of the expression “proof whereof shall lie upon him” in many statutory defences, and the position regarding provocation in charges of murder in New South Wales, until the recent amendment of the relevant statutory provision.

III. A QUESTION OF BALANCE

5.9 In any review of the rules of criminal procedure, and in any consideration of suggested change, we must among other things, assess the extent to which we should be influenced, first by the need to protect the innocent from unacceptable risks of wrongful conviction and, secondly, by the need to seek efficiency in the system. In this context, we use “efficiency” not only in the sense of avoiding unnecessary delay and expense, but also in the sense of facilitating the conviction of the guilty.

5.10 But what is an “unacceptable risk of wrongful conviction”? The answer may not be the same with regard to all offences and in all contexts. This is perhaps best illustrated by reference to the customary suspension of habeas corpus in wartime, and the assumption of emergency powers in times of crisis. It appears reasonable to assume that members of the community would be more willing to allow a person who may have committed a theft to go free because there is doubt as to his or her guilt than they would be to permit an alleged spy to move freely about the country in times of war because, despite the existence of a strong body of evidence, a reasonable doubt exists. At a less dramatic level the way in which the balance is struck between competing principles varies in different circumstances. This will be seen when we refer in chapter 8 to the provisions of sections 476 and 501 of the Crimes Act 1900, and the need to balance what might be seen as a prima facie right to trial by jury against the need to avoid overburdening the courts in which such trials are held. The balance, it will be suggested, favours the principle of the right to trial by jury in the more serious cases, and favours the need of both the defence and the prosecution for reasonable expedition in the less serious.

5.11 The notion of striking a balance implies that an informed decision on a proposal for change cannot be made simply by rigidly applying one principle at the expense of all others. Protection of individual liberties, increased efficiency of law enforcement agencies, and the avoidance of undue delays and excessive costs, for example, are all worthy goals in the abstract but may conflict in a particular case. Where conflict between these goals occurs, judgment must be exercised.

IV. AN ALTERNATIVE APPROACH ²

5.12 We are aware of a substantial body of opinion to the effect that in the context of criminal procedure, the notion of “balance” is not helpful and indeed may divert attention from crucial issues. it can be argued, for example, that to concentrate on balancing the apparent conflict between individual liberties and efficiency in law enforcement glosses over specific problems that occur in the everyday administration of the criminal justice system. Critics argue, for example, that to “strike a balance” in favour of a procedural measure designed to protect the accused may create a false impression that significant changes have occurred. The impression may be false because, in practice, the system may be able to cope only if the vast majority of accused persons, whether through ignorance or unsympathetic administration of the new measure, do not avail themselves of its protection. Moreover, the idea of balancing competing interests perhaps suggests a false division between the public or community interest in law enforcement and the individuals civil liberties. We accept that procedural measures designed to safeguard accused persons are not merely for their benefit, but for the well-being of the community as a whole. The conflict, if there is one, is not between the public good and individual liberty, but between different aspects of the communities interests.

5.13 In England the Royal Commission on Criminal Procedure (the Philips Commission),in its 1981 report, addressed itself to the problem of balancing the interest of the whole community and the rights and liberties of the individual citizen.

“At first sight the notion of a fundamental balance of the kind specified may appear unarguable, almost axiomatic, a matter of common sense; but further consideration of the matter raises a number of difficult and perhaps, in the last analysis, insoluble questions. Can there be in any strict sense an equation drawn between the individual on one side and society on the other? Is the balance some sort of social contract between the individual and society? What are the rights and liberties of the individual which are assumed to provide part of the balance? Who gives them and what justifies them? Are they all of equal weight; all equally and totally negotiable or are some natural absolute, fundamental, above the law, part of the human beings birthright? On the other side of this assumed balance, especially in an increasingly heterogeneous and specialised society, how is the interest of the whole community to be defined with any useful precision?” ³

The Royal Commission considered that the proper approach was to establish a “framework of first principles” as a means of measuring the adequacy of existing arrangements, of judging the merits of new proposals and of assessing their contribution to striking the proper balance.

5.14 In the second part of the report, dealing with the prosecution of offenders, the Commission specified the principles in terms of “broad standards of fairness, openness and accountability, and efficiency”. This framework was similar, although not identical, to that employed in the first part of the report on the investigation of offences. The Commission outlined the relevant principles as follows:

“Is the system fair first in the sense that it brings to trial only those against whom there is an adequate and properly prepared case and who it is in the public interest should be prosecuted (that is, tried by a court) rather than dealt with in another way (by cautioning, for example), and secondly in that it does not display arbitrary and inexplicable differences in the way that individual cases or classes of case are treated locally or nationally? Is it open and accountable in the sense that those who make the decisions to prosecute or not can be called publicly to explain and justify their policies and actions as far as that is consistent with protecting the interests of suspects and accused? Is it efficient in the sense that it achieves the objectives that are set for it with the minimum use of resources and the minimum delay?” ⁴

5.15 Criteria of fairness, openness and accountability, and efficiency may be relevant at different stages of our work on this reference, although not all of them need be relevant at the same stage. Considerations of efficiency are, for example, of importance in determining how any re-organisation of indictable and summary work might proceed. Considerations of fairness are also of basic importance in determining the procedures to be followed throughout a trial On the other hand, considerations of accountability could not be allowed to impair judicial independence. In any event, criteria of this kind lack precision. What constitutes fairness in a particular instance may call for most detailed analysis and may attract vigorous debate. Perhaps, in the end, they add nothing to the instinctive process implicit in striking a balance between competing values. Nonetheless, the criteria identified by the Philips Royal Commission illustrate at least the possibility of framing broad alternative guidelines for evaluating the whole of criminal procedure or its constituent parts.

V. A DEBATE

5.16 We think it neither desirable nor necessary to specify in an initial Issues paper the principles upon which our reports on this reference will be based. To do so would be to pre-empt the debate to which we referred when opening this chapter. One purpose of this chapter is to encourage comment and submissions on the principles which underpin, or should underpin criminal procedure, and its reform.

5.17 In the end, the debate is about the uses of power. We are conscious of the words of one author who wrote:

“The criminal sanction is the paradigm case of the controlled use of power within a society. It raises legal issues that are too important to be left to the lawyers, philosophic issues that are too important to be left to the philosophers, and behavioral science issues that are too important to be left to the behavioral scientists. That is why I this book] is addressed ... to the Common Reader.” ⁵

1. See generally, The Accused (ed. JA Coutts, Stevens & Sons, London, 1966) and esp pp.1-20, and the Law Reform Commission of Canada, Issues in Criminal Procedure - Control of the Process (Working Paper 15) (Minister of Supply and Services, Ottawa, 1975).

2. See generally, HL Packer, The Limits of the Criminal Sanction (Stanford University Press, Stanford, 1968), esp. at p.3-5.

3. Philips Report, para.1.12.

4. Id., para.6.8.

5. See HJ Packer, n.2 above, p.5.