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


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A Detention and Interrogation

The two topics of detention and interrogation may conveniently be treated together as they are closely related, and both systems now provide for detention for the purposes of interrogation. It will be helpful to sketch the relevant law in both New South Wales and France before making comparisons.

1 New South Wales

A person may be arrested by a police officer in New South Wales if the officer suspects, with reasonable cause, that the person has committed an offence.18 Prior to 1997 a person so arrested was required to be taken before a magistrate as soon as reasonably practicable to be dealt with according to law. The law did not allow detention for interrogation after arrest.19 Since 199720 that person may be detained for an investigation period up to four hours, extendable – on the warrant of an authorised justice – to up to 12 hours, for the purposes of investigation, including the interrogation of that person.21 Specified ‘time outs’ are not to be taken into account in determining the investigation period.22

As soon as practicable after a person comes into custody a custody manager must caution the person orally and in writing that the person ‘does not have to say or do anything but that anything the person does say or do may be used in evidence’.23 Any admission made without a prior caution would thus be obtained illegally and improperly,24 and is likely to be excluded from evidence at any trial.25 Since 1995 any admission made in the course of official questioning is, subject to some exceptions, inadmissible in evidence on a serious indictable offence unless recorded by audio or video.26 No unfavourable inference is to be drawn at trial from the failure of an accused in New South Wales to answer one or more police questions and, further, evidence of such failure is not to be admitted if it can only be used to draw such an inference.27 The custody manager must also inform the person detained that he or she has the right to communicate in confidence with a friend, relative or independent person, and must provide facilities for any consultation with such persons at the place of detention.28 It should be added that a person under arrest but not detained for investigation under Part 10A of the Crimes Act and a person attending a police station voluntarily and being questioned by police who have formed the belief that there is sufficient evidence to establish that the person has committed an offence should, in both cases, be cautioned.29

2 France

A suspect the subject of an enquête de flagrance or an enquête préliminaire can be required by the judicial police to attend at a police station under a garde à vue (a long-established French procedure30) for interrogation and while further investigations are carried out.31 The period of detention is initially up to 24 hours, extendable on the authorisation of a prosecutor up to 48 hours.32 There is no provision for ‘time outs’ within this period. During this period the suspect can be interrogated by the police. The police had never been obliged to caution the suspect that he or she was not obliged to answer their questions until they were required to do so by an amendment to the Code de Procédure Pénale art 63, by law (Loi) 2000-516 of 15 June 2000, aimed at strengthening the presumption of innocence in the French system. Any interrogation is to be recorded in writing and signed by the suspect and the interrogating officer(s). This results in a procès-verbal which goes into the dossier.

A person under a garde à vue is entitled to be examined by a doctor to see if that person is fit to be so detained,33 is also now entitled to have a partner, relative, or employer telephoned,34 and is entitled to be informed of these rights.35 Everything that happens during the garde à vue (eg, the length of interrogation(s), rest periods, start and finish times of detention) is to be recorded in a procès-verbal.36 Interrogations of minors detained under a garde à vue have, since 16 June 2001, been video recorded on a trial basis with a view to seeing if this practice should ultimately be extended to adults. The recording at this stage may only be consulted in the case of a dispute about what the minor said and before any hearing.37 A suspect being interrogated by police but not detained under a garde à vue does not have to be cautioned.

If an investigating judge is commissioned by a prosecutor to investigate an offence, the judge can require the defendant to attend at the judge’s office for interrogation. This may happen many times during an investigation as new evidence is obtained and the defendant’s response is sought. The defendant is required to be notified on his or her first (formal) appearance before the investigating judge that interrogation can only then proceed with the defendant’s consent, which consent is required to be given in the presence of the defendant’s lawyer.38 By virtue of the Loi of 15 June 2000 the judge is also now required to notify the defendant that he or she may make any declarations, be interrogated or remain silent.39 The investigating judge does not appear to be required to caution the defendant on subsequent appearances before the judge, which may be many.40 Defendants the subject of an investigation by an investigating judge have usually been kept in custody (détention proviso ire) during the investigation for ready availability to the investigating judge.41

3 Comparison

Only since 1997 has the law in New South Wales allowed for detention of persons under arrest for the purposes of interrogation. Such detention under a garde à vue has long been an integral part of investigations by the French judicial police. Both initial and extended periods of detention are considerably longer in France than in New South Wales. A defendant in New South Wales has to be cautioned before any interrogation while under detention, which is in addition to the caution that has long been required when first arrested. The judicial police in France, on the other hand, have only very recently been required to caution a person detained under a garde à vue.

This difference between the two systems reflects an important difference in attitudes towards the right to silence. This right and its protection – through cautions and the prohibition on adverse inference or comment at trial – are well established in New South Wales and Australia, while in France, which has traditionally regarded a defendant as a necessary information source in revealing the truth, a caution has only lately been required and adverse inferences (from silence or prevarication by a defendant during a garde à vue) are not prohibited and are very likely still to be drawn.

As to the recording of admissions, New South Wales now has a relatively satisfactory system of video or audio recording as a condition for admissibility into evidence. The French seem to have started down that road with juvenile defendants, but it will probably be some time before such recordings replace the procès-verbaux in dossiers in all cases. As to contact with other persons while in detention, a New South Welsh detainee may telephone in confidence a relative or other specified person and have that person attend at the police station for consultation. A French detainee may have a police officer telephone such a person, but that person cannot consult with the detainee at the police station.

Another noteworthy difference during the investigation of serious offences arises from the French use of an investigating judge. Such judges have become accustomed to maintaining defendants in custody for the purposes of the investigation, sometimes for years. An Australian defendant facing even serious charges would be more likely to be freed on bail. Although another judge must now concur in the ‘provisional detention’ of a French defendant, the investigating judge may well be able to persuade the other judge that the necessities of the investigation require continuing detention.

B Search, Medical Examination and Bodily Sampling of Detained Persons

1 New South Wales

A person when arrested for any offence may be searched by the person effecting the arrest for any incriminating matter,42 and when in lawful custody on any charge may be searched by any police officer, who may take anything found.43 Identification particulars, including photographs and finger-prints, may be taken by the police of a person in lawful custody.44 A medical examination by a doctor of a person in lawful custody may be carried out if there are reasonable grounds for believing that such examination will afford evidence of the offence alleged,45 and (since 1997) in such an examination samples of blood, saliva and hair may be taken.46

The taking of samples is now regulated by the Crimes (Forensic Procedures) Act 2000 (NSW), effective from 1 January 2001. This Act provides for intimate and non-intimate forensic procedures to be carried out on suspects, persons convicted of serious indictable offences and volunteers, and for the establishment of a DNA database in New South Wales, to be part of a projected national DNA database. Intimate forensic procedures include the examination of the genital and anal areas of the body and the taking of samples from them, and the taking of samples of blood and saliva. Non-intimate forensic procedures include the external examination of other parts of the body, taking samples of non-pubic hair and from under nails, and taking fingerprints and photographs.47 Intimate and non-intimate forensic procedures may be carried out on adult suspects, both under arrest and not, with informed consent or by order of a magistrate, but non-intimate forensic procedures may be carried out on an adult suspect under arrest by order of a police officer of or above the rank of sergeant.48

2 France

The police investigating a flagrant crime or délit may search a suspect with or without consent and seize anything found, and if necessary and in appropriate circumstances they can require the suspect to undress for an external examination of the body.49 For the purposes of a preliminary investigation the police require the written consent of the suspect for a personal search.50 On authorisation by a prosecutor or an investigating judge, the police may take fingerprints and photographs of suspects for the purposes of identification.51 The police or a prosecutor may for the necessities of an investigation require a person detained under a garde à vue to undergo an examination by a doctor, and that examination – since the Loi of 15 June 2000 – may now be internal.52 An investigating judge may also commission a doctor to examine a defendant for incriminating evidence.53 There has been legislation in France since 1998 for the compilation of a DNA databank54 from traces found at crime scenes, and samples from persons convicted of specified, relatively serious offences. Samples for DNA analysis may also be taken from suspects the subject of criminal investigation for the specified offences, but it is not clear from the legislation whether their consent is required. The better view seems to be that it is not and that provided there is authorisation by an investigating judge or a prosecutor, samples can be taken coercively if necessary. In practice consent is sought and ‘systematically’ obtained.55

3 Comparison

There are clear similarities between the law in New South Wales and France as regards the search of suspects and arrested persons. The police may generally make such searches and seize what is found. They may take fingerprints and photographs, and require medical examinations for incriminating evidence. The law in France, however, is more discriminating as between different levels of offence (the relevant law in New South Wales applying to any offence) and it provides for greater judicial or prosecutorial control over the police.

The approach to the taking of DNA samples in France appears to be more cautious than in New South Wales. Where the French have not made it explicit that DNA samples can be taken without consent, they can always be so taken in New South Wales, and for a non-intimate forensic procedure they can be taken on the order of a police sergeant.

C Legal Assistance

1 New South Wales

A person who has been detained by the police for investigation after arrest has the right (and must be so informed) to communicate with a legal practitioner of his or her choice, to have that practitioner attend at the place of detention and consult in private with the person detained, and to have the practitioner present and giving advice during any interrogation or other investigative procedure involving that person.56 The custody manager must ensure those rights can be exercised.57 Any such legal services will be at the expense of the detainee.

In relation to a person under arrest but not detained for investigation under Part 1 0A of the Crimes Act and a person attending a police station voluntarily, the Police Code of Practice for CRIME obliges the police to allow such persons to obtain legal advice and legal assistance at any questioning by police.58 This obligation is only enforceable, however, by way of a judicial discretion to exclude improperly obtained evidence, exercisable under section 138 of the Evidence Act 1995 (NSW).

2 France

A defendant detained for the purposes of a garde à vue has recently become entitled to the services of a lawyer. Since 1993 this right arises after 20 hours from the beginning of the garde à vue, for a period not exceeding 30 minutes, and in conditions of confidentiality.59 If the defendant could not obtain his or her own lawyer then a lawyer was to be assigned (at public expense)60 by the leader of the local bar (the bâtonnier). As a result of the Loi of 15 June 2000 effective from 1 January 2001, the defendant can now consult with a lawyer at the beginning of the garde à vue, after the 20th hour and after the 36th hour if the garde à vue is prolonged beyond that time. The lawyer, however, is not entitled to be present while the defendant is being interrogated and is not entitled to see the record of the investigation to date, although he or she is entitled to be informed of the offence alleged against the defendant.61

As regards an investigation by an investigating judge, a defendant is entitled to have a lawyer present when attending before the judge for the purposes of the investigation, including when being interrogated by the judge.62 The lawyer can be of the defendant’s choice or assigned (at public expense) by the local bâtonnier. The lawyer is entitled to consult the dossier and, at his or her expense, have copies made of the contents.63

In my observation of the French system, lawyers, although given advance notice, do not always attend when their clients are before an investigating judge. When they do their function is limited to making suggestions as to additional matters that could be explored by the investigating judge for the benefit of the defendant.

3 Comparison

As to legal assistance during detention, this is available to a New South Welsh defendant from the outset of the detention and including during any interrogation, while a French defendant is only entitled to short visits from a lawyer while under a garde à vue and not to have the lawyer present during any interrogation. The French defendant, however, is entitled to publicly funded legal assistance. The French legal system has generally shown more concern that a lawyer will reduce the chances of a defendant talking than has the Australian system, and this concern has been particularly evident during the crucial investigation phase. The (limited) presence of a lawyer at the garde à vue (and the recent requirement of a caution) appear to have arisen from the French concern about the perception that the presumption of innocence is not sufficiently incorporated into their legal system. During an attendance before an investigating judge, however, a French defendant is entitled to have a lawyer present, although the lawyer, who anyway will not always attend, plays essentially an observer role, but may suggest potentially exculpatory lines of investigation.

A The Accused as Witness

1 New South Wales

An accused in New South Wales may elect whether to give evidence or not. Evidence will be given from the witness box, on oath or affirmation, and the accused will be subject to cross-examination by the prosecution.64 An accused may give evidence at trial in support of a defence that has never been suggested to the investigating police and not be subject to an adverse inference being drawn because of the right to silence operative during the investigation.65 If on a trial for an indictable offence the accused fails to give evidence, section 20 of the Evidence Act 1995 (NSW) restricts the comment that may be made on such failure. The prosecutor may not comment at all and any comment by the trial judge ‘must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned’.66

Section 20 has recently been the subject of interpretation in the High Court, and the scope of judicial comment on the failure of an accused to give evidence – previously acceptable at common law, including by the High Court67 – appears to be being restricted now for New South Wales.68

2 France

An accused in France is invariably interrogated by the presiding judge. The interrogation is based on the procès-verbaux or depositions contained in the dossier which is in the hands of the presiding judge on the bench. In the cour

d ’assises this interrogation can be quite extensive and can range from very aggressive to benign. The object of the interrogation appears to be to put the prosecution case to the accused and seek his or her acceptance of it. He or she will be closely questioned about any conflicts between his or her statements and those of other witnesses, and about any consistencies in his or her own statements.

The accused is interrogated not only about the facts of the case, but also about his or her personnalité, or, broadly, character and personal history, including any prior convictions,69 and in fact the latter interrogation is generally done first. If the accused is silent in the face of this interrogation (very rare and difficult to achieve), or prevaricates or tries to resile from previous statements, the presiding judge is likely to indicate that the court will draw the appropriate (adverse) inferences. This seems to be warranted by the Code de Procédure Pénale which allows the court to take into account in reaching its decision ‘the impression made by the means of defence’.70

A considerably less extensive interrogation of the defendant, and generally only about the facts of the case, is conducted by the presiding judge in the tribunal correctionnel, but again the defendant generally responds. In the tribunal de police the judge will generally do no more than ask the defendant what he or she has to say about the charge and the defendant, or his lawyer, will generally at best proffer something in mitigation.

B Legal Representation

1 New South Wales

At trial an accused is entitled ‘to make full answer and defence by counsel’71 but is not entitled to have this done at public expense.72 Counsel is able to object to prosecution evidence, cross-examine prosecution witnesses, call and examine defence witnesses and make opening and closing addresses. Defence counsel is entitled to have the last word to the jury before the trial judge’s summing up.73

2 France

At trial in the cour d’assises or the tribunal correctionnel the accused is entitled to be ‘assisted’ in his or her defence by a lawyer of his or her choice or one designated (at public expense) by the presiding judge.74 In the tribunal de police the defendant is entitled to legal representation75 but not to a lawyer assigned at public expense.

Although there are entitlements to legal representation, by virtue of the nature and functioning of the system such representation is less in scope and effect than in an adversarial system. As the presiding judge at a hearing does virtually all the interrogation of the witnesses (including the accused), the lawyers are reduced to suggesting, on invitation, any additional questions for the judge to ask and, more importantly, addressing the court after the evidence has been adduced or referred to. Addresses by defence lawyers will generally be directed to mitigation of penalty rather than to acquittal. In the cour d’assises they will often be lengthy, eloquent and quite passionate, seemingly for the benefit of the jurors. In the tribunal correctionnel they are much less so, and in the tribunal de police they are quite minimal.

C Comparisons

At trial an accused in New South Wales is not obliged to give evidence and no adverse comment by the trial judge or prosecutor can be made about the failure to do so. An accused in France, however, is obliged to submit to interrogation by the presiding judge at a hearing and the purpose of such interrogation is generally to have the accused confirm the evidence of guilt contained in the dossier. A right to silence based on the privilege against self-incrimination is well entrenched in the law of New South Wales, both during the investigation and at trial, buttressed by a prohibition against the drawing of adverse inferences from the exercise of the right. The French prefer to use an accused as a source of information towards the manifestation of the truth. The accused in France cannot avoid being questioned both during the investigation and at trial, and adverse inferences will be drawn from unresponsiveness.

As to legal representation at trial, the lawyer for an accused in New South Wales plays a considerably more active role than his or her French counterpart. The lawyer in New South Wales can impact significantly on the evidence adduced to the court through cross-examination of the prosecution’s witnesses, objecting to prosecution evidence and calling defence witnesses, while in France the adducing or revealing of evidence is in the hands of the presiding judge. The lawyer in New South Wales will normally be aiming primarily at an acquittal or a reduced level of liability to that charged, while the French lawyer will more likely be focused on mitigation of penalty through an address at the end of the hearing. The French lawyer has a better opportunity of impacting on the outcome of criminal proceedings during the investigation than at the hearing.

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