McKillop, Bron --- "The Position of Accused Persons under the Common Law System in Australia (More Particularly in New South Wales) and the Civil Law System in France" [2003] UNSWLawJl 38; (2003) 26(2) UNSW Law Journal 515
[*] Law School, University of Sydney. I am indebted to Magalie Tréguer of Freshfields Bruckhaus Deringer, Paris, for keeping me updated on changes to French criminal procedure.
[1] I will focus my attention on the legal system in the state of New South Wales (NSW) as representative of the common law system in Australia. It will soon become apparent that much of the relevant NSW law is now in statutory form, but this has generally been derived from the pre-existing common law.
[2] Mirjan Damaška, ‘Structures of Authority and Comparative Criminal Procedure’ (1975) 84 Yale Law Journal 480, 483–523.
[3] Mirjan Damaška, ‘Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study’ (1973) 121 University of Pennsylvania Law Review 506, 577.
[4] This expression appears like a leitmotiv through the Code de Procédure Pénale (‘CPP’), eg, arts 54 (investigation into flagrant offences), 81 (judicial investigation), 310 (hearing before the cour d’assises), 456 (hearing before the tribunal correctionnel).
[5] As to why this is so, see Jan Štephán, ‘Possible Lessons from Continental Criminal Procedure’ in Rothenberg (ed) The Economics of Crime and Punishment (1973) 190. It will be interesting to see if this culture of talking is affected by recently required cautioning of suspects, as to which see below.
[6] There are two main police forces in France – the police nationale (policing the larger urban areas and the highways) and the gendarmerie (policing the smaller urban areas and the countryside). Both forces contain police judiciaire (judicial police) responsible for criminal investigations.
[7] Or audience, as the French generally say, the word ‘hearing’ being more appropriate for this procedure than ‘trial’.
[8] Mirjan Damaška, The Faces of Justice and State Authority (1986) 195.
[9] See Bron McKillop, ‘What Can We Learn from the French Criminal Justice System?’ (2002) 76 Australian Law Journal 49, fn 54.
[10] Secrecy during an investigation is mandated by the CPP art 11.
[11] I have elsewhere described in some detail the French criminal justice system and its different levels. See Bron McKillop, Anatomy of a French Murder Case (1997) and, in a shorter version under the same name, (1999) 45 American Journal of Comparative Law 527; Bron McKillop, ‘Readings and Hearings in French Criminal Justice: Five Cases in the Tribunal Correctionnel’ (1998) 46 American Journal of Comparative Law 757; Bron McKillop, ‘Police Court Justice in France: Investigations and Hearings in Ten Cases in the Tribunal de Police’ (2002) 24 Sydney Law Review 207. See also McKillop, above n 9. I should add that the above descriptions of and commentary upon the French criminal justice system derive mainly from attending hearings and reading dossiers off and on over a 15 year period, and discussions with French operatives of the system and academics.
[12] The Instruction Criminelle is dealt with by arts 79–100 of the CPP.
[13] The Enquête de Flagrance is dealt with by arts 53–74 of the CPP.
[14] The Enquête Préliminaire is dealt with by arts 75–8 of the CPP.
[15] See, eg, Doreen McBarnet, Conviction: Law, the State and the Construction of Justice (1981).
[16] Ministère de la Justice, Les Chifres-clés de la Justice (October 2002) 11, 17.
[17] Opened for signature 4 November 1950, 213 UNTS 221 (entered into force on 3 September 1953).
[18] Crimes Act 1900 (NSW), s 3 53(2).
[19] Bales v Parm eter [1935] NSWStRp 8; (1935) 35 SR (NSW) 182; Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278.
[20] By virtue of the Crimes Act Amendment (Detention after Arrest) Act 1997 (NSW) inserting a new Part 10A into the Crimes Act 1900 (NSW).
[21] In Victoria, by contrast, a person may be detained for investigation including interrogation for a ‘reasonable time’: Crimes Act 1958 (Vic) s 464A.
[22] Crimes Act 1900 (NSW) ss 356C–L.
[23] Crimes Act 1900 (NSW) s 356M.
[24] Under the Evidence Act 1995 (NSW) s 139.
[25] Pursuant to the Evidence Act 1995 (NSW) s 138.
[26] Originally under the Crimes Act 1900 (NSW) s 424A, but now under the Criminal Procedure Act 1986 (NSW) s 108. A ‘serious indictable offence’ refers to an indictable offence other than one that can be dealt with summarily without the consent of the accused.
[27] Evidence Act 1995 (NSW) s 89.
[28] Crimes Act 1900 (NSW) s 356N.
[29] Evidence Act 1995 (NSW) s 139 and the Police Code of Practice for Custody, Rights, Investigation, Management and Evidence (‘CRIME’) 48.
[30] The garde à vue in more or less its present form has been in place since the enactment of the CPP in 1958, but the judicial police could ‘secure’ suspects in the nineteenth century: Adhemar Esmein, A History of Continental Criminal Procedure, with Special Reference to France (translated from the original French by John Simpson) (1913) 44.
[31] CPP arts 63 and 77.
[32] CPP art 63. Longer periods of detention are provided for terrorist, drug trafficking and organised crime offences.
[33] CPP art 63-3.
[34] CPP art 63-2, as amended by Loi 2000, 516.
[35] CPP art 63-1.
[36] CPP art 64.
[37] Jean Pradel, Procédure Pénale (1 1th ed, 2002) [509].
[38] CPP art 116.
[39] CPP art 116-4.
[40] In my study of a French murder case published in McKillop, Anatomy (1977), above n 11, the accused was brought before the investigating judge eight times.
[41] The Loi of 15 June 2000 now requires a juge des libertés et de la détention as well as the juge d’instruction to agree to such detention.
[42] Crimes Act 1900 (NSW) s 352(1), (2).
[43] Crimes Act 1900 (NSW) s 353A(1).
[44] Crimes Act 1900 (NSW) s 353A(3).
[45] Crimes Act 1900 (NSW) s 353A(2).
[46] Crimes Act 1900 (NSW) s 353A(3A), overcoming the decision in Fernando v Commissioner of Police (1995) 78 A Crim R 64 against the taking of blood samples under s 353A(2).
[47] The power to take fingerprints and photographs under this Act appears to duplicate the power under the Crimes Act 1900 (NSW) s 353A(3).
[48] Crimes (Forensic Procedures) Act 2000 (NSW) ss 3 and 5.
[49] The power to do this is said to be ‘assimilated’ to the CPP power in art 56 to search premises. See Pradel, above n 37, [405] and cases there cited.
[50] CPP art 76.
[51] CPP art 78-3.
[52] CPP art 63-5.
[53] CPP art 81.
[54] CPP arts 706–54.
[55] Pradel, above n 37, [450]–[452].
[56] Crimes Act 1900 (NSW) s 356 N(1)–(3). The detainee must be given a reasonable opportunity to exercise these rights: Pollard v The Queen (1992) 1976 CLR 177.
[57] Crimes Act 1900 (NSW) s 356 N(5).
[58] Code of Practice for CRIME 44, 52–3.
[59] Pradel, above n 37.
[60] By way of aide juridictionnelle, to be provided under Loi 1991-647 of 10 July 1991.
[61] Pradel, above n 37.
[62] CPP art 114.
[63] Ibid.
[64] The right to make an unsworn statement from the dock not subject to cross-examination was abolished in NSW in 1994.
[65] Petty v The Queen (1991) 173 CLR 95, Evidence Act 1995 (NSW) s 89.
[66] Evidence Act 1995 (NSW) s 20(2). Similar restrictions apply in relation to the failure of a close relative of the accused to give evidence: s 20(3), (4). There is no such restriction under the section on comment by a co-accused.
[67] See, eg, Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217.
[68] See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50, Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285. Unlike NSW, adverse comment is now permitted in the United Kingdom under the Criminal Justice and Public Order Act 1994 (UK) ss 34–39.
[69] I will look more closely at the place of personnalité in the French system later.
[70] CPP art 353.
[71] Criminal Procedure Act 1986 (NSW) s 95.
[72] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.
[73] Criminal Procedure Act 1986 (NSW) s 98.
[74] CPP arts 274, 417.
[75] CPP art 536.
[76] Victim impact statements were originally provided for in NSW under the Victims Rights Act 1996 (NSW) and now under the Crimes (Sentencing Procedure) Act 1999 (NSW) div 2.
[77] Under the Victims Support and Rehabilitation Act 1996 (NSW).
[78] See David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales (3rd ed, 2001) 1455–6.
[79] CPP arts 1, 2, 85.
[80] Such latter groups have been listed recently in the CPP under arts 2-1 to 2-16.
[81] CPP art 89-1.
[82] CPP arts 371 (cour d’assises), 418 (tribunal correctionnel), 536 (tribunal de police).
[83] CPP art 371.
[84] In the murder case I reported upon in McKillop, Anatomy (1997), above n 11, the 16 civil parties (the relatives and partner of the deceased) were awarded a total of 340 000 francs (then worth about $A 85 000). This was paid by the state which then sought reimbursement through the forced sale of the accused’s house and car.
[85] See George Humphrey, ‘The Scientist as “Hired Champion”’ (1987) 12 Legal Science Bulletin 269. A recent example of this battle may be found in Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402.
[86] See sch K and pt 36 rule 13C of the Supreme Court Rules and sch 1 to pt 53 and Part 28 rule 9C of the District Court Rules. There is now provision also for court-appointed experts (pt 30 of the Supreme Court Rules and pt 28A of the District Court Rules), although these are unlikely to be used in criminal cases.
[87] The provisions for ‘expertise’ are to be found in CPP arts 156 to 169-1.
[88] CPP art 157.
[89] CPP art 156.
[90] CPP art 167.
[91] Should an issue of expertise turn out at the hearing to be not so resolved, the presiding judge has the power to refer the issue for further expert investigation and report: CPP art 169. This rarely happens.
[92] CPP art 168.
[93] CPP art 157.
[94] For an indication of the pros and cons of the French system of expertise see Bron McKillop, ‘Forensic Science in Inquisitorial Systems of Criminal Justice’ (1995) 7 Current Issues in Criminal Justice 36.
[95] The word ‘admission’ is now used in NSW evidence law to include a ‘confession’. See Evidence Act 1995 (NSW) pt 3.4 and the definition of ‘admission’ in the Dictionary. See also the Criminal Procedure Act 1986 (NSW) s 108.
[96] McDermott v The King (1948) 76 CLR 501, 511–12 (Dixon J).
[97] The King v Lee [1950] HCA 25; (1950) 82 CLR 133.
[98] Crimes Act 1900 (NSW) s 410, repealed in 1995.
[99] Evidence Act 1995 (NSW) ss 84, 85.
[100] Evidence Act 1995 (NSW) s 90.
[101] Evidence Act 1995 (NSW) ss 138, 139. In the common law or non-Evidence Act jurisdictions of Australia (ie, all except the Commonwealth, NSW and Tasmania), illegally obtained confessions or admissions may be excluded under the discretion elaborated in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. See, eg, Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1.
[102] Originally under the Crimes Act 1900 (NSW) s 424A, now under the Criminal Procedure Act 1986 (NSW) s 108.
[103] CPP art 428, concerned seemingly with weight rather than admissibility.
[104] The expression ‘passage à tabac’ is readily understood in France as signifying coercive means used by the police to obtain confessions. The French police recently were condemned by the European Court of Human Rights for subjecting a person held under a garde à vue to beatings and hence ‘inhuman or degrading treatment’ contrary to art 3 of the European Convention on Human Rights in the case of Tomasi v France (1992) 241-A Eur Court HR (ser A).
[105] See Pradel, above n 37, [392]–[400].
[106] CPP art 81.
[107] CPP art 81.
[108] Makin v Attorn ey-General for NSW [1894] AC 57.
[109] Evidence Act 1995 (NSW) s 97.
[110] See, eg, Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461.
[111] Evidence Act 1995 (NSW) s 98.
[112] Evidence Act 1995 (NSW) s 101.
[113] Evidence Act 1995 (NSW) s 110(2), (3). An accused who gives evidence may, in certain circumstances, be cross-examined as to character and credibility: Evidence Act 1995 (NSW) s 104.
[114] See, eg, Evidence Act 1995 (NSW) s 110(1).
[115] See DPP v Shannon [1975] AC 717, 772; R v Darby [1982] HCA 32; (1982) 56 ALJR 688, 692. For recent High Court judgments confirming the rule against double jeopardy see Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 and R v Carroll (2002) 77 ALJR 157.
[116] Pradel, above n 37, [377]. An earlier commentator, Jean Carbonnier, is there referred to as having argued there should be neither a presumption of innocence nor a presumption of guilt as regards a suspect (in the French system) but a position of juridical neutrality.
[117] Ibid.
[118] It should be noted that the French standard of proof of guilt has long been to the level of personal conviction (intime conviction), as required by CPP art 353, which is similar to the standard of beyond reasonable doubt in common law systems.
[119] For an examination of what we can learn from the French criminal justice system more generally, see McKillop, above n 9.