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1 Introduction COMPONENTS OF THE CRIMINAL JUSTICE SYSTEM

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1.1 The criminal law deals with the most harmful type of conduct towards people. Its broadest aim is to prevent individuals from engaging in behaviour that causes harm, normally to others. The criminal justice system has four main components. First, the law sets out the type of conduct which is unlawful. Thus, we have laws prohibiting acts such as killing, rape and stealing. This branch of the criminal justice system is called substantive criminal law. It involves defining acts which are regarded as being seriously harmful and precisely setting out the scope of criminal acts and defences to such conduct. The main focus of this area of the law is defining the elements of a crime. Merely stating that murder and rape are illegal is an inadequate vehicle for proscribing conduct. The exact contours of conduct falling within these acts must be defined. This is to ensure that the law is knowable and certain, in order that individuals can make informed judgments regarding how to go about their affairs. Thus, for example, rape is generically defined as the sexual penetration of another person without consent. Therefore, the study of substantive criminal law analyses the content of the elements of criminal offences and the defences to such conduct. The second main component of the criminal justice system is the process by which liability for crime is determined. This principally involves an analysis of the rules and principles by which guilt or innocence is determined.

1 Arenson, Ken, and Mirko Bagaric. Criminal Processes and Investigative Procedures : Victoria and Commonwealth : Victoria and Commonwealth, LexisNexis Butterworths, 2018. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/swin/detail.action?docID=6272564. Created from swin on 2021-03-02 18:06:15.

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CRIMINAL PROCESSES AND INVESTIGATIVE PROCEDURES: VICTORIA AND COMMONWEALTH

The third component of the criminal justice system looks at the mechanisms by which individuals are brought within the system. This looks at the process for investigating crime and dealing with suspects prior to them being brought totrial. The last part of the criminal justice system is sentencing. This involves the imposition of sanctions on people who are found guilty of criminal offences. This book focuses on the second and third aspects of the criminal law, which are collectively known as ‘criminal procedure’. Moreover, it is confined to a discussion of criminal procedure in Victoria.

SOURCES OF LAW 1.2 The law governing criminal procedure derives from case law and statutory law. The main statute dealing with criminal procedure is the Crimes Act1958 (Vic). In 2008, the Victorian Parliament completed a wholesale reform of the law relating to criminal procedure. These changes are contained in the Evidence Act2008 (Vic) and the Criminal Procedure Act2009 (Vic).

MAJOR THEMES RELATING TO CRIMINAL PROCEDURE 1.3 There are several key themes and principles that apply in relation to criminal procedure. These are often conflicting and involve a clash between individual rights and the common good.

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Preventing crime 1.4 Crime is seriously injurious to the community. The community has a strong interest in preventing crime, apprehending criminals and punishing them. Criminal behaviour is not only harmful to victims, but if it is left undetected and unpunished it causes considerable unrest and insecurity within the community. Ifpeople believed they could commit crime with impunity, crime would escalate out of control. This is demonstrated by the results of natural social experiments. There have been several naturally occurring social experiments in which there was a drastic reduction in the likelihood (perceived or real) that people would be punished for criminal behaviour. The key aspects of these events are that the change occurred abruptly, and the decreased likelihood of people being detected and apprehended for wrongdoing was the only observable changed social condition. Perhaps the clearest instance of this is the police strike in Melbourne in 1923, which led to over one-third of the entire Victorian police force being sacked.1 Once news of the strike spread, mobs of thousands of people poured into the city

1.

The discussion regarding the events of the strike comes from K L Milte and T A Weber, Police in Australia (Butterworths, Melbourne, 1977), 287–92.

Arenson, Ken, and Mirko Bagaric. Criminal Processes and Investigative Procedures : Victoria and Commonwealth : Victoria and Commonwealth, LexisNexis Butterworths, 2018. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/swin/detail.action?docID=6272564. Created from swin on 2021-03-02 18:06:15.

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centre and engaged in widespread property damage, looting of shops, and other acts of civil disobedience including assaulting government officials and torching a tram. The civil disobedience lasted for two days and was only quelled when the government enlisted thousands of citizens, including many ex-servicemen, to act as ‘special’ law enforcement officers. This behaviour was in complete contrast to the normally law-abiding conduct of the citizens of Melbourne. Similar civil disobedience followed the police strike in Liverpool in 1919 and the internment of the Danish police force in 1944.2 Thus, it is important that there are adequate resources applied to criminal investigation and detection. The law also must confer investigative officials, normally police, with sufficient power and authority to investigate crime, arrest suspected criminals and bring them before a court. Once suspects are brought before a court, it is important that the trial process allows information (called ‘evidence’) to be received by the courts which is probative of guilt. In relation to defendants who are adjudicated guilty, judges must have sufficient powers to punish them adequately.

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In response to these interests, there are a large number of powers which are conferred on the public officials. Among the most important are: • police are given a power to arrest and detain suspects; • police can in some circumstances engage in covert operations and use listening and other devices to monitor the activities of suspects; • police can in some circumstances search suspects, ask them questions and obtain forensic samples such as fingerprints and DNA; • police can lay charges against suspects; • in some circumstances, people who are charged can be remanded in custody (refused bail) until they are tried; • courts are given power to determine guilt and innocence; • all evidence which is relevant to guilt or innocence is prima facie admissible; and • courts are given wide sentencing powers, including the power to imprison offenders.

Protecting individual rights 1.5 Individuals, and ultimately the community as a whole, have an interest in ensuring that the process for investigating and solving crime is not Draconian. If investigative officials or judicial officials are given too much power, this has the tendency to erode fundamental rights and ultimately cause unrest in the community. 2.

A Ashworth, ‘Deterrence’ in A von Hirsch and A Ashworth (eds), Principled Sentencing: Readings on Theory and Policy (2nd ed, Hart Publishing, Oxford, 1998), 44, 51 refers to the Liverpool strike, and the Danish experience is discussed in N Walker, Sentencing in a Rational Society (Penguin, London, 1969), 65.

Arenson, Ken, and Mirko Bagaric. Criminal Processes and Investigative Procedures : Victoria and Commonwealth : Victoria and Commonwealth, LexisNexis Butterworths, 2018. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/swin/detail.action?docID=6272564. Created from swin on 2021-03-02 18:06:15.

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CRIMINAL PROCESSES AND INVESTIGATIVE PROCEDURES: VICTORIA AND COMMONWEALTH

In response to this, there are a number of individual protections that have been developed to safeguard individual rights. These include, but are not limited to, the following: • confining the power of arrest and search and seizure to limited circumstances; • the presumption that accused persons should not be held in custody pending trial; • the right to silence, which generally means that suspects are not legally compelled to answer police questions; • the presumption of innocence, which places the burden of proof on the prosecution to establish guilt; • the requirement that guilt must be established beyond reasonable doubt; • the judicial discretion to exclude relevant evidence in instances in which its unfair prejudicial effect outweighs its probative value; • the judicial discretion to exclude relevant evidence which is illegally or improperly obtained; • the right to silence at trial; and • in sentencing offenders, the sanction can be mitigated by various factors relating to the accused such as a deprived social background and the need for rehabilitation.

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Balancing the competing considerations 1.6 The competing objectives outlined above both have merit, although they often clash. If, for example, the standard of criminal guilt is too low (say, the balance of probabilities), this will mean that a large number of innocent people will be convicted of crimes. If, on the other hand, the standard is too high (beyond all doubt, for example), far too many guilty people would be acquitted, thereby imperilling community safety. In a perfect system all guilty people would be arrested, charged and convicted, while all innocent people would never be bothered by investigative officials. Moreover, if innocent people were charged and tried, they would always be acquitted. However, no system is infallible and mistakes will always be made. Thus, irrespective of the criminal procedure model that is developed, there will always be some guilty people that are acquitted and some innocent people that are convicted. Even many people who plead guilty are in fact innocent. Research carried out in the United Kingdom for the Royal Commission on Criminal Justice suggests that 11 per cent of people who plead guilty at least claim innocence.3 The reasons that many innocent people plead guilty (normally by accepting a ‘plea bargain’ to a lesser charge) include the prohibitive cost of engaging a lawyer, the stress and uncertainty of a trial, and the fact that a sentencing discount is given to people that plead guilty. 3.

Royal Commission on Criminal Justice (UK, 1993). Seealso R Hood, Race and Sentencing (OUP, London, 1992), 125; P Darbyshire, ‘The Mischief of Plea Bargaining and Sentencing Rewards’ [2000] Criminal Law Review 895 at 903; M Zander, ‘What on Earth is Lord Justice Auld Supposed to Do?’ [2000] Criminal Law Review 419.

Arenson, Ken, and Mirko Bagaric. Criminal Processes and Investigative Procedures : Victoria and Commonwealth : Victoria and Commonwealth, LexisNexis Butterworths, 2018. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/swin/detail.action?docID=6272564. Created from swin on 2021-03-02 18:06:15.

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While many people agree with the maxim that ‘it is better that ten guilty men walk free than one innocent person is convicted’, a system which made proving guilt too onerous could result in virtually no convictions. If, for example, our system stipulated that an accused could only be convicted in instances in which at least two people gave direct evidence of the crime, this would mean that very few accused would be convicted. This would result in a significant escalation in crime. The more safeguards that are built into the system, the more likely it is that innocent people will be acquitted and, by the same token, fewer people will be convicted. The courts and legislators have not been able to develop a coherent, workable test which properly balances these competing ideals. Against this backdrop, however, it is helpful to remind ourselves continually that the primary purpose of a criminal trial is not merely to provide a mechanism for convicting the guilty; rather, it is to serve as a vanguard against wrongful conviction, a goal that should be exalted by the masses of law-abiding people who might otherwise be wrongly convicted in the absence of the foregoing safeguards. A concept which has been invoked to provide some guidance in relation to such matters is ‘fairness’. The concept has been discussed most extensively by the High Court in the context of a fair trial. The High Court has stated that the right to a fair trial is ‘the central thesis of the administration of criminal justice’4 and ‘the central prescript of our criminal law’.5 It has been stated that the existence and importance of the right to a fair trial is so evident that it is not in need of an express justification. Nearly a century ago, IsaacsJ in R vMacfarlane, ex parte O’Flanagan6 stated that every person has:

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the elementary right … to a fair and impartial trial. That such a right exists as a personal right seems to me so deeply rooted in our system of law and so elementary as to need no authority to support it. It is a right which inheres in every system of law that makes any pretension to civilization. It is only a variant of the maxim that every man is entitled to his personal liberty except so far as that is abridged by a due administration of the law.7

The ingredients of the right to a fair trial are not clear.8 Most broadly, any error during a trial, including an incorrect jury direction or the wrongful admission

4. 5. 6. 7.

McKinney vThe Queen (1991) 171 CLR 468 at 478. Jago vDistrict Court of New South Wales(1989) 168 CLR 23 at 56. (1923) 32 CLR 518. Ibid at 541–42. In a similar vein, Lord Devlin in Connelly vDPP [1964] AC 1254 at 1347 stated: ‘nearly the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to seethat what was fair and just was done between prosecutors and accused’. Seefurther, J Hope, ‘A Constitutional Right to a Fair Trial? Implications for the Reform of the Australian Criminal Justice System’ (1996) 24 Federal Law Review 173; I Langford, ‘Fair Trial: The History of an Idea’ (2009) 8 Journal of Human Rights 37; Hon J J Spigelman AC, ‘The Truth can Cost Too Much: The Principle of a Fair Trial’ (2004) 78 Australian Law Journal 29 at 34. 8. In Jago vDistrict Court of New South Wales(1989) 168 CLR 23 at 79, Deane J stated: ‘The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one’. Seealso Hon J J Spigelman AC, ‘The Truth can Cost Too Much: The Principle of a Fair Trial’ (2004) 78 Australian Law Journal 29.

Arenson, Ken, and Mirko Bagaric. Criminal Processes and Investigative Procedures : Victoria and Commonwealth : Victoria and Commonwealth, LexisNexis Butterworths, 2018. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/swin/detail.action?docID=6272564. Created from swin on 2021-03-02 18:06:15.

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CRIMINAL PROCESSES AND INVESTIGATIVE PROCEDURES: VICTORIA AND COMMONWEALTH

of inculpatory evidence, can be said to result in an unfair trial.9 Isaacs J stated that ‘every conviction set aside, every new criminal trial ordered, are mere exemplifications of this [the fair trial] fundamental principle’.10 James Spigelman AC gives a number of examples of rules derived from the right to a fair trial, including the right to competent counsel, the right to a separate hearing in cases where accused are charged jointly, the right to disclosure of all relevant information held by the prosecution,11 many of the exclusionary rules of evidence (such as the similar fact evidence rule) and the content of jury directions.12 Ian Langford, following an extensive historical analysis of the notion of a fair trial, notes the broad nature of the fair trial concept: The current legal use of fair trial incorporates the notion of a ‘regular procedure’ or what is more commonly called ‘procedural fairness.’ It is based on a ‘check list approach’ in which questions are asked against a set of rights of the defendant in criminal cases.13

According to Langford, the right to a fair trial does not have a fixed meaning. My history of the idea of a fair trial does, I believe, in a negative way, support this argument because it suggests that fair trial is like rugby, the boys scouts, and television, simply a diffused cultural trait.14

Many of the rights of individuals in relation to criminal matters are set out in the Charter of Human Rights and Responsibilities Act2006 (Vic).15 This Act does not purport to create new rights. Rather, it is designed to guide the courts in their interpretation of existing statutes.16 Section25 of the Act states as follows:

25 Rights in criminal proceedings (1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

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(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees — (a) to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands; and (b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her; and (c)

9. 10. 11. 12. 13. 14. 15. 16.

to be tried without unreasonable delay; and

For further discussion, seeR vB, MA [2007] SASC 384. R vMacFarlane, ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518 at 542. The contents of this are set out in AJ vThe Queen [2010] VSCA 331. Spigelman, above n 7, at 37–38. Seealso J J Spigelman AC, ‘The Internet and the Right to a Fair Trial’ (2006) 7 Judicial Review 403. A I Langford, ‘Fair Trial: The History of an Idea’ (2009) 8 Journal of Human Rights 37 at 48. Ibid at 51. For further discussion of this legislation, seeM Bagaric et al., Australian Human Rights Law (CCH, Sydney, 2011). SeeMomcilovic vThe Queen [2011] HCA 34; (2011) 280 ALR 221.

Arenson, Ken, and Mirko Bagaric. Criminal Processes and Investigative Procedures : Victoria and Commonwealth : Victoria and Commonwealth, LexisNexis Butterworths, 2018. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/swin/detail.action?docID=6272564. Created from swin on 2021-03-02 18:06:15.

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(d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act1978; and (e) to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act1978; and (f)

to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act1978; and

(g) to examine, or have examined, witnesses against him or her, unless otherwise provided for by law; and (h) to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses for the prosecution; and (i)

to have the free assistance of an interpreter if he or she cannot un...