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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1 New South Wales

An accused in the adversarial system has the benefit of a presumption of innocence. This is of importance in relation to pre-trial matters such as prejudicial media reporting and entitlement to bail. It is usually invoked, however, in the context of the trial, but there it means no more, legally, than that the prosecution bears the burden of proving the guilt of the accused beyond reasonable doubt, and that the accused is entitled to an acquittal if the prosecution fails to adduce sufficient evidence to achieve this. The presumption does not operate in such a case to establish the accused’s innocence, the position simply being that the accused has not been proved beyond reasonable doubt to be guilty, and cannot be tried again for the same offence.115

2 France

It is sometimes suggested, particularly by those from a common law system, that there is no presumption of innocence in the French criminal justice system, but rather a presumption of guilt. This is an understandable reaction by those observing French hearings, particularly in the lower courts, and if aware of the considerably higher conviction rates at hearings in France as opposed to trials in common law countries. But it is to misunderstand the nature of the French system. The prosecution there does not adduce evidence at the hearing, for the evidence is in the dossier, and – particularly in the lower courts – there it generally remains (although known to the court, the prosecutor and any defence lawyer). Oral evidence is called in the cour d’assises but it is basically a regurgitation of the depositions and reports in the dossier and it is adduced by the presiding judge, not the prosecutor. It could in that situation be said that the presiding judge had a responsibility to make public through the interrogation of witnesses the evidence of guilt contained in the dossier. But that does not remove the burden of establishing guilt from the investigators in the compilation of the dossier.

Talk of a presumption of innocence may be appropriate for a contest between the prosecution and the defence but less so for an enquiry into the truth of matters surrounding a criminal event. A leading French commentator has in fact referred to the presumption of innocence in the context of the procedures to which a defendant can be subjected during an investigation by both the police and an investigating judge, calling it ‘in large measure a fiction’.116 The same commentator also notes the functions and powers of judges, both investigatory and at trial (as opposed to those of the prosecutor) as a factor undermining the presumption of innocence in its application to the French system.117

Given this state of affairs it is perhaps surprising that France signed up to the European Convention on Human Rights, which in article 6 gives a right to a fair trial, seemingly based on an adversarial (with full civil rights) rather than an inquisitorial model, and providing in article 6(2) that: ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’. The insertion of a presumption of innocence into the French system has been taken further by Loi 2000-516 of 15 June 2000 which added a preliminary article to the Code de Procédure Pénale to the effect that every person suspected of or being prosecuted for an offence is presumed innocent unless or until his or her guilt has been established.118 The presumption has been sought to be further enhanced by that Loi through changes to the garde à vue (requiring the cautioning of a suspect, allowing the attendance of a lawyer), to the provisions for detention during a judicial investigation (requiring a second judge (a juge des libertés et de la détention) to agree to the need for such detention, and allowing indemnification for wrongful detention) and to the scope of pre-trial publicity (the creation of a délit of publishing an image of an unconvicted defendant in handcuffs or in provisional detention).

Although beneficial to the position of a suspect or an accused in the French system, it is hard to see that these changes will impact in any significant way on attitudes and practices traditionally associated with French law enforcement, particularly as regards the focus on a thorough investigation by police, judges and prosecutors with suspects as primary sources of information.


The essential contrast between an accused in Australia (or more particularly in New South Wales) and an accused in France arises from the differing characteristics of the two criminal justice systems. The Australian system requires the prosecution to prove the guilt of the accused and the accused does not have to contribute to that endeavour. The accused can remain silent during any police interrogation and at trial and no adverse inference should be drawn from such silence. The accused is also entitled to full legal assistance during any interrogation and to active legal representation at trial, although in both cases not at public expense.

The French system, by contrast, regards an accused as an important source of information in arriving at the truth about the commission of a crime and it allows adverse inferences to be drawn against an accused who does not cooperate with the police and the judges (both during investigation and at hearings) in that endeavour. Legal assistance and representation have generally not been allowed to interfere with the use by the authorities of the accused as an information source. It will be apparent from the above that proving the guilt of an accused is done at a trial while the pursuit of the truth about a crime is essentially done during an investigation. This puts the focus of the Australian system as regards the determination of guilt or not on the trial but the focus of the French system on the investigation. The fate of an accused is thus largely being determined in different phases and at different stages of the two systems.

There are some other noteworthy contrasts between the positions of the accused in the two systems. An Australian accused need be little concerned with having to deal with the victim(s) of any crime, while a French accused will often have to deal not only with the prosecutor but also with a civil party seeking both retribution and monetary compensation. As to questions of expertise, an Australian accused can commission his or her own expert(s) to do battle with the prosecution’s experts while a French accused is generally obliged to accept the opinion(s) of court-appointed experts, which will generally be in support of the prosecution if a case is proceeding to a hearing. As to admissions (or confessions), an accused in Australia has more chance of having a dubious admission excluded from evidence (even with the current regime of electronic recording) than an accused in France, where if there is a confession in the dossier, including one made to the police, it will generally be accepted as reliable. Regarding material on personnalité, evidence of bad character (including prior convictions) or evidence that is more prejudicial than probative is generally not admissible against an accused in Australia, as well of course as evidence that is irrelevant to the issues before the court. An accused in France, at least in the cour d ’assises, is in the relatively disadvantageous position of having his or her entire personal history, any prior convictions and any bad character traits exposed to the court (including the jurors) at the outset of the hearing. As this is done in the context of material on both liability and sentence being taken together at the hearing, an accused is unlikely to be hopeful about an acquittal. Finally, a presumption of innocence fits appropriately into Australian-type adversarial proceedings by focusing on the prosecution’s burden to prove the guilt of the accused, failing which the ‘not guilty’ accused is acquitted. The presumption is however hardly appropriate to a system like the French in which guilt is essentially established through investigations carried out by the judicial police and investigating judges. Those investigators may be said to have a burden of establishing any guilt and at the hearing the presiding judge may be said to have the ‘burden’ of demonstrating that the investigation as recorded in the dossier has established the guilt of the accused. But this is not the same thing as the prosecutor having to lead evidence at a trial to prove the guilt of the accused. The changes effected by the ‘presumption of innocence’ Loi of 15 June 2000, such as the requirement of a caution by the police to a suspect held under a garde à vue and the right of a suspect to the attendance of a lawyer there, do not affect the basic structure or functioning of the French criminal justice system, in relation to which the presumption could justifiably be called a ‘fiction’. But then there is perhaps something fictional about the presumption of innocence when applied to the adversarial system if, when the prosecution fails to ‘rebut the presumption’ by proving the accused guilty, the accused is not regarded as innocent.

So, are there procedures in the French system which could be beneficially adopted into the Australian system? Accepting the basic differences between the two systems that I have suggested, the answer would have to be generally negative. There are two areas, however, where systemic differences would not necessarily rule out adoptions, where efficiencies in the Australian system could be thereby enhanced and where there are already home-growing movements in those directions. The candidates for such adoption, as has been indicated above, are a greater role for victims, including their legal representation, and the replacement of party-selected with court-appointed experts.119


* 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).

  1. 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.

  2. 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.

  3. Or audience, as the French generally say, the word ‘hearing’ being more appropriate for this procedure than ‘trial’.

  4. Mirjan Damaška, The Faces of Justice and State Authority (1986) 195.

  5. See Bron McKillop, ‘What Can We Learn from the French Criminal Justice System?’ (2002) 76 Australian Law Journal 49, fn 54.

  6. Secrecy during an investigation is mandated by the CPP art 11.

  7. 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) 35 SR (NSW) 182; Williams v The Queen (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) 178 CLR 217.

68 See RPS v The Queen (2000) 199 CLR 620, Azzopardi v The Queen (2001) 205 CLR 50, Dyers v The Queen (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) 177 CLR 292.

73 Criminal Procedure Act 1986 (NSW) s 98.

74 CPP arts 274, 417.

75 CPP art 536.

  1. 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.

  2. Under the Victims Support and Rehabilitation Act 1996 (NSW).

  3. See David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales (3rd ed, 2001) 1455–6.

  4. CPP arts 1, 2, 85.

  5. Such latter groups have been listed recently in the CPP under arts 2-1 to 2-16.

  6. 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) 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) 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) 141 CLR 54. See, eg, Cleland v The Queen (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) 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) 56 ALJR 688, 692. For recent High Court judgments confirming the rule against double jeopardy see Pearce v The Queen (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.

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