charge (whatever answer is given). Even if the answer cannot be used in any way at the any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. (emphasis in original) The majority said that a procedure which permits post-charge examinations about the subject matter of a pending charge alters the process ‘fundamentally of criminal justice’. It appears that part of the reason why a person could be prejudiced, even if the answers could not be used at the trial, is that the accused’s lawyer would not be able to test the prosecution’s case in a manner that is inconsistent with the accused person’s instructions. This may be affected by what an accused person is required to say in an examination. The result is that the accused person could no longer decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution’s case as revealed by the prosecution brief and the evidence led at trial. Provision of material to prosecutors Key principles If post-charge examinations are to be permitted, despite the concerns raised by a majority of the High Court in X7, then it is essential that material arising from such an examination is not provided, directly or indirectly, to the person responsible for prosecuting the person being examined. Last year in Lee No. 2, a unanimous High Court said: Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. … The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. … It is a breach of the principle of the common law and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. As described earlier, that case concerned a failure to comply with directions that were (and should have been) made under s 13(9) of the New South Wales Crime Commission Act 1985 (NSW).
charge (whatever answer is given). Even if the answer cannot be used in any way at the any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. (emphasis in original) The majority said that a procedure which permits post-charge examinations about the subject matter of a pending charge ‘fundamentally alters the process of criminal justice’. It appears that part of the reason why a person could be prejudiced, even if the answers could not be used at the trial, is that the accused’s lawyer would not be able to test the prosecution’s case in a manner that is inconsistent with the accused person’s instructions. This may be affected by what an accused person is required to say in an examination. The result is that the accused person could no longer decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution’s case as revealed by the prosecution brief and the evidence led at trial. Provision of material to prosecutors Key principles If post-charge examinations are to be permitted, despite the concerns raised by a majority of the High Court in X7, then it is essential that material arising from such an examination is not provided, directly or indirectly, to the person responsible for prosecuting the person being examined. Last year in Lee No. 2, a unanimous High Court said: Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. … The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. … It is a breach of the principle of the common law and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. As described earlier, that case concerned a failure to comply with directions that were (and should have been) made under s 13(9) of the New South Wales Crime Commission Act 1985 (NSW).