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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Common law systems are much more likely to exclude evidence in criminal trials than Continental European systems, particularly the French. Information gathered during a French investigation is recorded in a dossier. Dossiers are compiled by the judicial police, investigating judges and prosecutors, and are under the ultimate control of prosecutors. They are expected to contain relevant, reliable and properly obtained information. The contents of the dossier generally form the basis for judgment, even in the cour d ’assises where witnesses are called. There may be some hearsay and lay opinion in the dossier but this it seems is not relied upon on crucial issues or is given little weight. Certainly there is no attempt to draw the fine distinctions in relation to the admissibility of hearsay, for example, that the common law has done. There is, however, one area to do with evidence with a significant impact on an accused and in which the rules and practices of the two systems typically differ. That area relates to admissions (or confessions95), which I will briefly examine.

1 New South Wales

For some time now common law systems have looked closely at how confessions and admissions have been obtained for the purposes of their admissibility into evidence. In Australia at common law the ‘basal principle’ is that to be admissible a confession has to be shown to have been made voluntarily, in the exercise of a free choice.96 There is also a discretion to exclude an otherwise admissible confession if, having regard to the circumstances in which it was made, it would be unfair to use it against an accused.97 For a period in New South Wales there was also legislative provision for the exclusion of confessions induced by persons in authority.98 In New South Wales the admissibility of ‘admissions’ is now regulated by the Evidence Act 1995 (NSW). Admissions influenced by violent, oppressive, inhuman or degrading conduct, or made in circumstances in which it cannot be shown (by the prosecution) that the truth of the admission was unlikely to be adversely affected, are inadmissible.99 The common law discretion to exclude for unfairness has also been included in the Act.100 The Act further provides for the discretionary exclusion of admissions improperly obtained, such as without a preceding caution.101 Also, it must be recalled that since 1995 admissions are not admissible into evidence, with certain exceptions, unless recorded by video or audio.102

2 France

There is very little legislation in France dealing with the admissibility of evidence at a hearing. The only mention of a confession (aveu), for example, as a means of proof in the Code de Procédure Pénale is that, in the context of the proof of délits, it is to be ‘left to the free appreciation of the judges’.103 The difference here with a common law system is not surprising if one bears in mind the centrality of the adversarial trial in a common law system, and hence the screening of and contention over the evidence being adduced, as opposed to the centrality of the investigation in the French system, which is concerned with compiling as complete and revelatory a dossier as possible – by or under the control or supervision of an investigating judge or prosecutor and with minimum input from the defence.

Confessions have long been regarded in the French system as of great importance for the manifestation of the truth (‘la reine des preuves’ – the queen of proofs). With suspects detainable over relatively long periods by the police under a garde à vue without the benefit, until very recently, of a lawyer or of a caution, it is not surprising that confessions were forthcoming.104 If a duly signed and counter-signed confession to the police becomes part of the dossier it is highly likely to be accepted by a court at a hearing, even if disputed by the accused. If there is a confession in the police papers sent to an investigating judge it will be difficult for a defendant to resile from it. If it is then confirmed or repeated to the judge the confession will be virtually unimpeachable at the hearing. There are said to be duties incumbent upon investigators in France, such as respect for personal dignity and privacy (from the European Convention on Human Rights, articles 3 and 8) and acting with propriety and honesty (loyauté) (from the case law (jurisprudence)).105 If the dossier contains no traces of any breach of such duties, and is formally correct, it is very likely to be accepted as to its proofs at any hearing, including before the cour d’assises.


It is obligatory for a judge in France investigating a crime to make inquiries into the personnalité of the defendant,106 as well as into the facts of the alleged crime. The French have a dictum: ‘On juge l’homme, pas les faits’ (One judges the person, not (just) the facts). Personnalité refers to family history, education, work record, material situation, leisure interests, frequentations, criminal record and general character traits – particularly traits indicative of good or bad character. Such inquiries are generally made by the judicial police on commission from the investigating judge and the results go into the dossier. Also, as we have seen, the presiding judge in the cour d’assises usually commences the questioning of the accused on his or her personnalité – including seeking confirmation of the details of any criminal record – in front of the jury. This practice should be understood in the context of liability and sentence being dealt with together at the hearing.

Inquiries into a defendant’s personnalité by a judge investigating a délit are optional107 and seem rarely to be made. Prosecutors supervising police investigations of délits and contraventions do not seem to require or expect the police to inquire into personnalité but they always seek a record of any prior convictions for the dossier.

A common lawyer would generally regard such evidence of an accused’s personnalité as irrelevant to liability, unduly prejudicial or both. Evidence of mere propensity108 or tendency109 is generally inadmissible (although sufficiently probative evidence of similar facts110 or related events111 does become admissible provided the probative value of the evidence substantially outweighs any prejudicial effect112). Bad character evidence, including evidence of prior convictions, cannot be adduced by the prosecution in New South Wales unless the accused adduces evidence of good character and so puts his or her character in issue.113 Although the acceptance by the French of propensity and bad character evidence on liability may seem strange to common lawyers, acceptance of good character evidence should not, as it is accepted also in common law systems.114 In fact there is some inconsistency in the common law allowing an accused to adduce evidence of good character on the issue of guilt but generally not allowing the prosecution to adduce evidence of bad character on that issue.

Another notable difference between the two systems in these regards is the common law’s concern about evidence thought to be unduly prejudicial to an accused. It is juries that are thought likely to be prejudiced, not judges. It is somewhat paradoxical that the jury, vaunted by common lawyers as bringing the experience and discernment of a representative cross-section of society to the task of judging accused persons, is thought to have such difficulty in separating prejudice from probative value. The French position in this regard could also be seen as somewhat paradoxical, in that although it is the probative material that matters in the search for the truth as to the facts, the accused’s character and personal history is also being taken into account, at least in the cour d’assises.

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