- Right to silence stolen, says lawyer
- By Steve Gray
- AAP
- 26/09/2008 Make a Comment
- Contributed by: BigJoe ( 1 article in 2008 )
BRISBANE, Sept 25 AAP - An accused person's right to silence - a principle of the British law since the Magna Carta was signed in 1215 - has been effectively abolished in Queensland, said Brisbane's best known lawyer Terry O'Gorman.
Mr O'Gorman, the Australian Council for Civil Liberties president, said secret hearings where an accused person is forced to answer questions, and do so without legal representation, are now an everyday occurrence in Queensland.
He says the state's Crime and Misconduct Commission (CMC) routinely holds "star chamber" trials where an accused person who refuses to answer questions faces imprisonment.
This means the accused person is forced to reveal their defence to a matter being tried in another court.
But the right to silence and the right to be tried in front of a jury are fundamental to British law and its offshoots, and were enshrined in the Magna Carta in 1215.
The CMC's powers date back to the Fitzgerald Inquiry into political and police corruption in Queensland and its consequential report delivered in July 1989.
But Mr O'Gorman said Fitzgerald's recommendations had been at first ignored and later manipulated by successive governments.
The Goss Labor government ignored the recommendation that investigative hearings should only be held after an application by the (then) Criminal Justice Commission (CJC) to the Supreme Court.
During a period of conservative government the CJC was split - its investigative wing becoming the Queensland Crime Commission.
After this period in opposition, Labor, under Peter Beattie, undertook to establish the CMC.
"That necessitated a complete rewrite of the statute," Mr O'Gorman said.
However, in rewriting the Crime and Misconduct Act 2001 - a move touted by the government as purely cosmetic - a new provision was included, without consultation.
"It was touted at the time as simply, in effect, reconstituting the Criminal Justice Commission as it was," Mr O'Gorman said.
"Buried in that Act was Section 331."
The legal profession didn't notice Section 331 and it became law on January 1, 2002.
The section authorises the CMC to conduct hearings despite any other court action against a person.
This overruled a High Court decision which said a person could not be forced to answer questions before a crime commission hearing if they had been charged before a court.
"Section 331 over-rode that High Court decision, with no notice to anyone," Mr O'Gorman said.
Indeed, parliament's own Scrutiny of Legislation Committee said the Bill was "a complex piece of legislation" and "in the time available, the committee has been unable to conduct a detailed analysis of its contents".
At no stage does the committee's report consider Section 331 of the Act.
It was not until May 2005 that the case of Witness A alerted the legal profession to the ramifications of the change.
Witness A was called before the CMC to answer questions relating to a matter for which he had been charged to appear before another court.
"Since then, it has become standard practice for the CMC to bring accused people in and make them answer questions about the very matters that they're charged with," Mr O'Gorman said.
While the evidence given to the CMC cannot be quoted straight back at the accused in a criminal trial, Mr O'Gorman said any discrepancy would automatically leave the accused person open to a charge of perjury in one of the two hearings.
This would provide a huge incentive to tell the CMC investigators what they want to know.
Also, evidence given to the CMC could be used to open other lines of investigation which could produce evidence the prosecution could use at a subsequent trial.
"In a practical sense, the section has largely abolished the right to silence, without any fanfare or consultation to the public generally, or to the legal profession in particular," Mr O'Gorman said.
"You have to, as an accused, now hand over the details of your defence to the CMC who, effectively on a daily basis, are conducting these star chamber inquiries."
Mr O'Gorman said he doesn't know how many star chamber hearings there have been, but added that one legal practitioner had attended five this year alone.
He said there were two presiding officers and four barristers at the CMC whose full-time job was to hold the hearings on a daily basis in Brisbane and throughout the state.
"If you look at the cumulative effect of the changes to the CMC since its predecessor, the Criminal Justice Commission, was set up in 1990 post the Fitzgerald Report, it is a completely and radically different beast from what Fitzgerald envisaged," Mr O'Gorman said.
"What Fitzgerald envisaged was that the Criminal Justice Commission, now re-badged as the Crime and Misconduct Commission, would sparingly and rarely conduct investigative hearings.
"Over the period since then - 20 years - you've seen these star chambers change from what Fitzgerald envisaged, namely, rarely used only in very serious cases, to their now being a daily occurrence.
"They have become a mundane, ordinary, everyday part of the criminal justice scenery, and it's a development that has been unremarked."
Mr O'Gorman said Section 331 and its frequent use would be a "central plank" of his submissions to a parliamentary committee currently conducting a three-yearly review of the CMC.
Tony Fitzgerald declined to comment on the current state of the commission, saying only: "I don't follow or comment on Queensland issues".
Mr O'Gorman, the Australian Council for Civil Liberties president, said secret hearings where an accused person is forced to answer questions, and do so without legal representation, are now an everyday occurrence in Queensland.
He says the state's Crime and Misconduct Commission (CMC) routinely holds "star chamber" trials where an accused person who refuses to answer questions faces imprisonment.
This means the accused person is forced to reveal their defence to a matter being tried in another court.
But the right to silence and the right to be tried in front of a jury are fundamental to British law and its offshoots, and were enshrined in the Magna Carta in 1215.
The CMC's powers date back to the Fitzgerald Inquiry into political and police corruption in Queensland and its consequential report delivered in July 1989.
But Mr O'Gorman said Fitzgerald's recommendations had been at first ignored and later manipulated by successive governments.
The Goss Labor government ignored the recommendation that investigative hearings should only be held after an application by the (then) Criminal Justice Commission (CJC) to the Supreme Court.
During a period of conservative government the CJC was split - its investigative wing becoming the Queensland Crime Commission.
After this period in opposition, Labor, under Peter Beattie, undertook to establish the CMC.
"That necessitated a complete rewrite of the statute," Mr O'Gorman said.
However, in rewriting the Crime and Misconduct Act 2001 - a move touted by the government as purely cosmetic - a new provision was included, without consultation.
"It was touted at the time as simply, in effect, reconstituting the Criminal Justice Commission as it was," Mr O'Gorman said.
"Buried in that Act was Section 331."
The legal profession didn't notice Section 331 and it became law on January 1, 2002.
The section authorises the CMC to conduct hearings despite any other court action against a person.
This overruled a High Court decision which said a person could not be forced to answer questions before a crime commission hearing if they had been charged before a court.
"Section 331 over-rode that High Court decision, with no notice to anyone," Mr O'Gorman said.
Indeed, parliament's own Scrutiny of Legislation Committee said the Bill was "a complex piece of legislation" and "in the time available, the committee has been unable to conduct a detailed analysis of its contents".
At no stage does the committee's report consider Section 331 of the Act.
It was not until May 2005 that the case of Witness A alerted the legal profession to the ramifications of the change.
Witness A was called before the CMC to answer questions relating to a matter for which he had been charged to appear before another court.
"Since then, it has become standard practice for the CMC to bring accused people in and make them answer questions about the very matters that they're charged with," Mr O'Gorman said.
While the evidence given to the CMC cannot be quoted straight back at the accused in a criminal trial, Mr O'Gorman said any discrepancy would automatically leave the accused person open to a charge of perjury in one of the two hearings.
This would provide a huge incentive to tell the CMC investigators what they want to know.
Also, evidence given to the CMC could be used to open other lines of investigation which could produce evidence the prosecution could use at a subsequent trial.
"In a practical sense, the section has largely abolished the right to silence, without any fanfare or consultation to the public generally, or to the legal profession in particular," Mr O'Gorman said.
"You have to, as an accused, now hand over the details of your defence to the CMC who, effectively on a daily basis, are conducting these star chamber inquiries."
Mr O'Gorman said he doesn't know how many star chamber hearings there have been, but added that one legal practitioner had attended five this year alone.
He said there were two presiding officers and four barristers at the CMC whose full-time job was to hold the hearings on a daily basis in Brisbane and throughout the state.
"If you look at the cumulative effect of the changes to the CMC since its predecessor, the Criminal Justice Commission, was set up in 1990 post the Fitzgerald Report, it is a completely and radically different beast from what Fitzgerald envisaged," Mr O'Gorman said.
"What Fitzgerald envisaged was that the Criminal Justice Commission, now re-badged as the Crime and Misconduct Commission, would sparingly and rarely conduct investigative hearings.
"Over the period since then - 20 years - you've seen these star chambers change from what Fitzgerald envisaged, namely, rarely used only in very serious cases, to their now being a daily occurrence.
"They have become a mundane, ordinary, everyday part of the criminal justice scenery, and it's a development that has been unremarked."
Mr O'Gorman said Section 331 and its frequent use would be a "central plank" of his submissions to a parliamentary committee currently conducting a three-yearly review of the CMC.
Tony Fitzgerald declined to comment on the current state of the commission, saying only: "I don't follow or comment on Queensland issues".
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