Your right to silence is fundamental

In X7 v Australian Crime Commission [2013] HCA 29 a majority of the High Court (French CJ and Crennan J dissenting) has found that the Australian Crime Commission Act 2002 (Cth) (Act) does not authorise an examiner to conduct an examination of a person charged with an indictable Commonwealth offence, where that examination concerns the subject matter of the offence so charged.    

On 23 November 2010, the plaintiff was arrested and charged with three indictable offences and subsequently taken into custody.  The offences are: conspiracy to traffic in a commercial quantity of a controlled drug, conspiracy to import a commercial quantity of a border controlled drug and conspiracy to deal with money that is the proceeds of crime. 

While in custody, the plaintiff was served with a summons requiring him to appear to be examined by an examiner for the purpose of a “special ACC operation/investigation”.  The plaintiff answered questions which went to the subject matter of the offences with which he had been charged.  Following an adjournment of the examination, the plaintiff, then legally represented, refused to answer further questions in the same vein.  The examiner informed the plaintiff that he would, in due course, be charged with the offence of failing to answer the questions put to him.  The plaintiff commenced proceedings against the Australian Crime Commission (ACC) and the Commonwealth alleging that the examiner is not permitted to compel him to answer questions relating to the subject matter of the offences with which he had been charged. 

Relevantly, the Commonwealth and the ACC argued that the fact the examination was conducted in secret and directions were given as to the use which may be made of the answers given, meant that the Act does not authorise a contempt when read in the manner suggested.  Hayne and Bell JJ queried whether requiring the accused person to answer questions about the subject matter of a pending charge interfered with the process of criminal justice.  In considering the process of criminal justice, having commented on the accusatorial process of investigation, the laying of a charge and the accusatorial process of pretrial procedures and trial, their Honours concluded at [101] that “the whole process for the investigation, prosecution and trial of an indictable Commonwealth offence is accusatorial”. 

A majority of the High Court held that the examination provisions of the Act do not authorise an examiner to conduct an examination of a person charged with an indictable Commonwealth offence, where that examination concerns the subject matter of the offence so charged.  At [118] Hayne and Bell JJ commented “If these provisions were to permit the compulsory examination of a person charged with an offence about the subject matter of the pending charge, they would effect a fundamental alteration to the process of criminal justice.”  That is not to say that a statute can never effect fundamental alterations to the process of criminal justice but such an alteration can only be made if it is made clearly by express words or necessary intendment. 

French CJ and Crennan J, dissenting, essentially found at [3] that the public interest in the continuing investigation of serious and organised crime is elevated over the private interest in claiming the privilege against self incrimination.  The latter being protected both by the prohibition on the direct use of answers given by an accused person and by the principles safeguarding the fair trial of same.     

Lavan Legal comment                                                                         

Unless the right to silence is expressly, with irresistible clearness, abrogated by legislation, that right remains, and as is evident in this case, an accused person is entitled to exercise it.  More broadly, this decision serves as a reminder that our fundamental freedoms, the right to silence and the privilege against self incrimination being examples, and fundamental principles, that the onus of proof rests upon the prosecution being an example, are heavily entrenched in our common law.     

If someone finds themselves in a situation where it is asserted that they are not permitted to exercise their right to silence, they should immediately seek legal advice to determine whether or not they are obliged to forgo their ordinary right to silence.