A Hollow Ring: The Right to Silence

On Wednesday, 20 March 2013, both the Legislative Council and the Legislative Assembly of the New South Wales parliament passed two pieces of cognate legislation that have the potential to radically alter the nature of the criminal justice system of NSW: the Evidence Amendment (Evidence of Silence) Act 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013. Not the least of the impacts these wide ranging statutes purport to have is on the right to silence. Inserted into the Evidence Act 1995 (NSW) by the first aforementioned statute is s 89A, which states,

'(1) In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact:
(a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and
(b) that is relied on in his or her defence in that proceeding.'

But unlike its foreign antecedents, the milieu in which the legislation operates is quite different. For example, there are no provisions for Duty Solicitors as there are in England, nor are the police required to make as full disclosure of their evidence to a suspect. It will fall to the NSW courts to construe the new legislation, and in so doing, they will be required to balance the interests of the accused with those of the community.

This paper will therefore trace the operation of the modified right to silence through the stages of the criminal justice system in which it will apply, and evaluate how the methods of statutory interpretation will serve to balance the interests of the individual against those of the community. It will outline the pre-existing law, and apply currently accepted approaches and methods of statutory interpretation to the legislation. The construction given by the English courts to their equivalent statutes will be canvassed, and a conclusion drawn as to how the NSW courts will apply the modified right. The paper will argue, in effect, the new right to silence will be a nullity; that given the low rates in which the right is exercised already, together with a lack of structural support in the surrounding justice system in which it operates, significant work is required to render it of any effect and, what we are left with, is something which is at best declaratory and thus, rings hollow.

The Right to Silence

Strictly speaking, there is no right to silence at common law, rather a bundle of rights or immunities. As Lord Mustill said in R v Director of the Serious Fraud Office; Ex p Smith [1993] AC 1 at 30-31, ‘it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance’. Lord Mustill referred to six individual immunities, which may be summarised as being an:

1. Immunity from being compelled on pain of punishment from answering questions of any kind; and,

2. Immunity from having adverse comment made on any failure to answer questions before or during trial.[1]

The rationale underlying the right to silence was stated by Gibbs CJ in Sorby v The Commonwealth (1983) 152 CLR 281 at 294 as twofold. The first is that a ‘cardinal principle’ of the criminal justice system is the onus of proving the guilt of the accused lay with the Crown. The second is that any powers which weakens the right ‘tends to lead to abuse and to "the concomitant moral deterioration in methods of obtaining evidence and in the general administration of justice"’.[2] There are, as the Australian Law Reform Commission (“ALRC”) suggests however, more practical and prescient reasons why the right exists.[3] One is that an otherwise innocent person may not recall an exculpatory fact simply out of shock and distress at being accused or suspected of a crime; that doing so may reveal an embarrassing fact about them; or they are protecting a family member.[4] Another is that most accused are weak, unintelligent and inarticulate. As Heydon suggests, ‘They are in a frightening situation; they may misunderstand the true significance of questions’ and subsequently ‘are prone to ramble, to tell foolish lies in an attempt to terminate questioning’.[5] Thus the right to silence is one that is firmly rooted in the view that the best way to protect the community is to preserve the rights of the individual; as Cicero said, ‘Rather leave the crime of the guilty unpunished than condemn the innocent.’ It is a right that flows both from the fact that the burden is on the Crown, and recognises the pressure able to be exerted by it when the machinery of the criminal justice system is brought to bear.

Yet despite these concerns, the right to silence has been frequently challenged on various bases. The first is that it has no rational justification in any criminal justice system even remotely concerned with establishing the truth.[6] A second is ‘that there are unlikely to be any reasons for silence consistent with innocence, and that many guilty people are helped to acquittal by relying on the right.’[7] Take, by way of example, the frightened, foolish suspect above. If the right to silence exists to protect them, then why does there exist a rule of evidence that allows the ‘lies of a person under questioning to be admitted as showing consciousness of guilt’?[8] Indeed, statistics show that most suspects do not remain silent when questioned.[9] This leads to a third argument: that the rule requires judges and juries to draw ‘absurdly fine distinctions’ in situations where either there is some doubt whether a suspect has asserted the right, or has only asserted it with regard to certain questions and not others.[10] The problem emerges under the rule in Woon v R (1964) 109 CLR 529 at 536 (per Kitto J) which is that while,

'the making of a statement in the presence of an accused person is never by itself evidence that the statement is true… the accused person's reaction or failure to react to the making of the statement may, according to the circumstances, afford evidence that he admits that the statement or some part of it is true.'

In which case, the most likely to benefit from the right to silence are those most familiar with its exercise: the professional criminal, well versed in the workings of the justice system.[11] However, both the NSW and Australian Law Reform Commissions concluded against the abolition of the right to silence. The latter primarily on the basis or principle—that to do so would be a radical departure from the tradition of British criminal justice where the onus is on the prosecution to prove its case.[12] The former on a similar basis, but with regard to the fact that, since the vast majority of suspects do not exercise the right, it could find no empirical data to suggest the right to silence is widely exploited, even by so-called professional criminals, nor does it impede prosecution of offenders.[13] Thus it appears the fear with regard to the retention of the right to silence is, like so many fears, irrational. If transcripts are admitted into evidence under the rule in Woon and most suspects do not exercise the right, then why is there a need to abolish or abrogate it? Indeed, if even as a matter of principle it would appear to be at best declaratory, then the most important rationale underlying its retention would be that enunciated above: it serves a moral, or normative function, any deterioration of which could lead to a concomitant degeneration in the general administration of justice wherein the suspect is not treated as innocent until proven by the Crown to be guilty.

English Law - Criminal Justice and Public Order Act 1994 (Eng)

The common law position was significantly modified in England with the passage of the Criminal Justice and Public Order Act 1994 (Eng). The rationale behind that Act grew out of the Eleventh Report of the Criminal Law Revision Committee Report (“CLRC”) into Evidence.[14] A majority of the CLRC recommended that the right to silence be abrogated, with the jury allowed to draw such inferences as it thought proper from a defendant’s failure to disclose facts to the police which he or she later relied on at trial, and that the judge be permitted to comment on the inferences available.[15] While at the time the recommendations were opposed and not implemented, they were put into effect in Northern Ireland in 1988, ostensibly to tackle a series of miscarriages of justice in terrorism cases.[16] Six years later, again on the impetus of a high-profile series of miscarriages of justice, a Royal Commission on Criminal Justice was held which ultimately recommended the right to silence should not be abolished in England. Regardless, the Conservative government enacted legislation that, in substance, gave effect to the 1972 recommendations of the CLRC. The then Home Secretary, Michael Howard, stated in the Second Reading speech introducing the Bill that,

'The present system is abused by hardened criminals. As a professional burglar, interviewed on Radio 4, explained: Amongst professional criminals it … is … a code. Name, rank and number only, as it were … There were times when I was acquitted and I stayed silent—I'm not going to answer the question as to whether I was innocent or guilty". … As the research cited by my hon. Friend the Member for Mid-Kent (Mr. Rowe) shows, conspicuously, it is professional criminals, hardened criminals and terrorists who disproportionately take advantage of and abuse the present system. That is why it has to be changed. … I do not believe that the innocent have anything to fear from the changes. If there is a good reason for the suspect to remain silent, the jury will be able to consider it.'[17]

The rationale was therefore that there was a serious problem with hardened offenders, and legislation was desperately needed not simply to protect the public, but to preserve the integrity and public confidence in the criminal justice system. Under the Criminal Justice and Public Order Act, s 34 allows inferences to be drawn from a suspect’s failure, when questioned under caution or charged, to disclose information they may later rely upon for their defence. Section 35 allows for said same inferences to be drawn from a defendant’s silence during trial. Sections 36 and 37 likewise allow inferences to be drawn if a suspect does not, after being arrested, account for: marks, objects or substances in their possession, and/or their presence at a place and time, that the police believe are reasonably attributable to participation in an offence. Section 38(4) however, provides that a defendant may not be convicted solely on the basis of silence.

The Criminal Justice and Public Order Act has been construed narrowly by the courts, with a view to preserving as much of the previous right to silence as the legislation allows. Thus while there is no obligation placed on the investigator to reveal the prosecution’s case to a suspect (or their legal representative) before questioning commences, the English courts have held that there must be sufficient disclosure of information to enable the suspect to understand the nature and circumstances of their arrest.[18] Relatedly, no adverse inferences may be drawn where there has only been a bare admission of the facts of the prosecution case, or where a mere suggestion, allegation or hypothesis has been offered.[19] These considerations go towards addressing the test of reasonableness in the legislation, and while, in some circumstances, such may be addressed by the enunciation of a rule of universal applicability, on many other occasions the requirement can only be answered by reference to the facts and is, therefore, a question for the jury. For example, in R v Argent [1997] 2 Cr App R 27 the English Court of Appeal had to consider the operation of s 34. Lord Bingham CJ, in considering the nature of the inference that may be drawn stated, ‘When reference is made to “the accused” attention is directed not to some hypothetical, reasonable accused of ordinary phlegm and fortitude but to the actual accused with such qualities, apprehensions, knowledge and advice as he is shown to have had at the time.’[20] His Lordship also held that it is solely for the jury to decide whether the circumstances in which the defendant refused to answer questions were ones in which he or she could be held to have reasonably done so. In adverting their mind to this question, the jury members are to use their common sense, experience and understanding of human nature.[21] Therefore, it is open for them to conclude that it was reasonable for a defendant not to have answered questions where he or she was,

'tired, ill, frightened, drunk, drugged, unable to understand what was going on, suspicious of the police, afraid that his answer would not be fairly recorded, worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.'[22]

This reflects those directions provided in the Model Directions,[23] wherein the onus is stated to be on the prosecution to establish an inculpatory reason why the defendant omitted the relevant evidence, or remained silent during trial.

In the context of the English legislation, it is finally important to consider the milieu in which it operates. There is what is known as a Duty Solicitor Scheme. Established by Police and Criminal Evidence Act 1984 (Eng), s 58, the scheme allows a solicitor to be made available to all suspects, at any police station nationwide, 24 hours a day and completely free of charge. However, there are a number of issues surrounding the scheme. One is that for certain minor offences, the free legal advice entitlement only extends to advice via a call-centre.[24] There is also the fact that many legal advisors are ex-police clerks.[25] As a result, many police officers have regarded the presence of legal advisors as more beneficial to them than to suspects.[26] Further legal advisors often counselled their clients to confess, and have served as effective witnesses as to any allegations of police mistreatment or the accuracy of confessions.[27] Finally, English authorities are permitted to continue interrogation even though a suspect has exercised their right to silence, and for a longer period of time than in NSW.[28]

We see in the English legislation a desire on the part of the legislature to not simply protect the community from the perceived threat of hardened, guilty men and woman prowling the streets, but also to maintain faith in the criminal justice system. As was noted by the ALRC, a system of justice that is even remotely concerned with ascertaining the truth must have structures and rules in place that facilitate this discovery. Concomitantly, if it is shown that system allows guilty people to go free—and such miscarriages are well publicised—then it follows that the public’s faith in the system will be compromised. The English courts though, have taken the view that, while they are required to give effect to will of parliament, the rationale of the justice system has not changed, being: an accused is innocent until proven guilty; it is on the Crown to discharge this onus; such is to be proven beyond a reasonable doubt; and, the right to silence is a fundamental means to address the power imbalance that exists between an accused and the Crown. In this sense, the English courts have not simply sought to balance the rights of the individual against the interests of the community, as expressed via legislation, but instead have recognised the ideology underpinning the common law position that the rights of the former are often the best means of ensuring the interests of the latter. Yet as a result of these judicial interventions, the question may rightly be asked, what has changed? While research shows that experienced offenders are less likely to remain silent, it has also shown that conviction rates of said offenders remain unchanged.[29] Likewise, the fact that so few suspects ever actually exercised the right demonstrates that its abrogation would result in no net effect regardless. At best, the legislation has further complicated the law and eroded a fundamental principle of it, if not in practice, then certainly in theory.

The NSW Legislation

Having outlined the pre-existing common law, and the regime under the English legislation, it now falls to consider the NSW statutes: the rationale behind it; how the courts will interpret and apply; and, the effects it will have on the balance between the interests of the community and those of the individual.

Rationale behind the NSW Legislation

The impetus for the NSW legislation is reported to have been the “wall of silence” met by police while investigating a spate of high-profile shootings in the western suburbs of Sydney.[30] In order to combat this, the NSW government flagged amendments to the Evidence Act 1995 and the Criminal Procedure Act 1986, ostensibly to break down this wall. In the Second Reading speech to the legislation, the Attorney-General, Greg Smith, said, with regard to the reasoning underpinning the legislation that, ‘The changes to the Evidence Act and the Criminal Procedure Act will assist in breaking down the wall of silence put up by accused persons seeking to frustrate the criminal justice process and cause delay.’[31] NSW Police Commissioner, Andrew Scipione, has said the changes are ‘about making sure that people can't concoct an excuse when they get to court on the first occasion and try and catch us out by not having disclosed that previously.’[32] This does, at first blush, seem a quite different rationale than that behind the English legislation. Indeed, one may question the utility of such provisions with regard to witnesses as opposed to accused. Furthermore, the statements by both the State’s chief law officer and chief police officer indicate the purpose is to remove surprise at trial, not to penalise a person who says nothing at all. Yet the legislation as enacted bears the hallmarks of the English provisions. In fact, s 89A may go further than s 34 of the Criminal Justice and Public Order Act by allowing “unfavourable inferences” as opposed to “such inferences from the failure as appear proper.” This raises a quite significant disconnect between the stated goals of the legislation—the community interests at stake appear to be primarily directed towards speedier trials, not miscarriages of justice—and the purpose of the legislation as disclosed through its interpretation.

Statutory Interpretation

There is a long history, with well-developed methodologies, under Australian law with regard to the construction of penal statutes both generally and, more particularly, with reference to self-incrimination. The modern rule as to the construction of penal statutes was stated in Beckwith v The Queen (1976) 135 CLR 569 at 576 (per Gibbs CJ):

'In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences.'

With regard to the privilege against self-incrimination, the test has been even more stringent. In Griffin v Pantzer (2004) 137 FCR 209 at 227-231, Allsop J (with whom the other members of the Full Federal Court agreed) summarised both the history of the privilege and the current manner in which it is applied in the context of statutory interpretation:

'It is presumed that Parliament does not intend to interfere with fundamental principles or rights including entrenched general law rights, such as the privilege against self-incrimination, without expressing its intention clearly, whether by express words or necessary implication.'[33]

The starting point though, is not with the purpose of the statute, as would ordinarily be the case.[34] Rather, the interpretive process ‘starts with the presumption that the privilege is not to be affected, rather than looking for an implied qualification of an otherwise freely interpreted statute’.[35] The difference this imports into the interpretive process is an important one and reflects the gravity of any attempt to abrogate the right to silence, especially with regard to the final qualification identified by Allsop J: that it is necessary to examine ‘anterior legal and historical context’ of the legislation in question in order to properly construe its meaning.[36]

The interpretive principles reflect the traditional stance of the common law with regard to preserving the rights of the individual as against the powers of the Crown. As these represent the law with respect to the interpretation of penal statutes, the legislature is taken to know of them when drafting and enacting legislation. In this sense, the law has built-in, so-to-speak, the rights and interests of the individual and, in interpreting the applicable legislation in accordance with it, so to will the legislation balance the rights of the individual with those community interests expressed therein.

Applying the above interpretive principles to the legislation, the courts will therefore seek to preserve as much of the right to silence as is possible. As the experience of the English courts demonstrates, much will turn on the construction of the term ‘reasonably’ in the provisions. Indeed, the requirement under s 89A(2) Evidence Amendment (Evidence of Silence) Act 2013 (NSW) that the inference may not be drawn unless, inter alia, given in the presence of an Australian Legal Practitioner, and was afforded an opportunity to consult with an Australian Legal Practitioner, mirrors s 34(2A) of the Criminal Justice and Public Order Act 1994 (Eng). There is little reason to believe, therefore, that the NSW courts will construe the NSW legislation any differently than the English courts have theirs. The result may (with regard to the right to silence provisions alone), be quite apart from the stated goals of the Attorney-General towards increasing efficiency; it actually may reduce it as found by the NSWLRC.[37] Furthermore, it is also likely that in assessing “reasonably”, the NSW courts will, like their English counterparts, hold that a defendant must have sufficient information to enable the suspect to understand the nature and circumstances of their arrest, which is not presently required. How this goes towards fulfilling the Attorney-General’s stated goal for the legislation is anyone’s guess, but it does illustrate the balance that will likely be struck between the interests of the community as expressed through the legislation and the interests of the individual.

Conclusions – Improvements

The current amendments as they now stand achieve neither their stated goals, nor do they uphold the principles upon which the criminal justice system has hitherto stood. The purpose was to break down the wall of silence and reduce delays. Quite apart from considering the provisions regarding pre-trial disclosure, it is difficult to see how either is achieved. The reforms have further eroded the requirements of the Crown to prove its case. Yet the likely interpretation of the legislation will result in the practical effect of the provisions leading to no changes, other than the somewhat positive result that police will now be required to disclose their case to a suspect sooner so that the prosecution may have the benefit of the inference. Even then, given the infrequency with which the right is invoked presently, what possible efficiency could this produce? It may seem petulant to suggest that the best possible improvement is a repeal of the amendments altogether, yet that would be the most sensible solution to such ineffectual legislation with regard to its purported goals. However, if we are to live with this new reality, then the best improvements to be made are in practice. The interpretation of the courts in line with the approach mooted above is the first part. In that light, it is difficult to see how the legislation is workable without some kind of duty solicitor-like scheme in place; else suspects need only consult their lawyers over the phone and then refuse to say anything to avoid the operation of the provision. The second is, relatedly, to formulate appropriate rules mandating the disclosure of information to the accused. If suspects are to have such inferences drawn against them, it is only reasonable they likewise be furnished with better facts. It will also be appropriate to formulate appropriate instructions to the jury that continue to stress the fact that the burden is on the prosecution, and there are many reasons consistent with innocence as to why an accused may not have disclosed certain information. The crux of all this though, is not a beneficent state government having seen the error of its ways, nor an outraged and engaged public. Rather, it is the interpretive principles of the Australian legal system at work, and the fundamental protections built therein that balance the interests of the community against those of the individual. It is a system that, fortunately, is built on a foundation which recognises the best means of protecting the community is often ensuring the rights of the individual. Due to this interaction though, we are left with a discordant melody—legislation not addressing the mischief it sought to and an attempted erosion of the cardinal principles of the criminal justice system. While this may eventually lead to the ‘moral deterioration’ Gibbs CJ warned of, presently, the rules of statutory interpretation ensure such erosion of the right to silence is, at best, declaratory, and one that ultimately rings hollow, even if it is one we may not like the sound of.

[1] [1993] AC 1 at 30-31.
[2] [1993] AC 1 at 30-31 citing, Validity of Section 92(4) of The Vehicles Act 1957 (Saskatchewan) [1958] S.C.R. 608, at 619.
[3] Australian Law Reform Commission, Criminal Investigation Report No 2 (1975).
[4] Australian Law Reform Commission, n 3 at [148].
[5] J D Heydon, ‘Police Powers and the Trial of the Accused: Some Modern Attitudes’ (1975) ANU History of Ideas Seminar Paper at 32.
[6] Australian Law Reform Commission, n 3 at [147].
[7] Australian Law Reform Commission, n 7.
[8] Australian Law Reform Commission, n 7.
[9] New South Wales Law Reform Commission, The Right to Silence Report No 95 (2000) at 2.15-2.16.
[10] Australian Law Reform Commission, n 3 at [147].
[11] Australian Law Reform Commission, n 3 at [149].
[12] Australian Law Reform Commission, n 3 at [150].
[13] New South Wales Law Reform Commission, The Right to Silence at [2.63, [2.68] and [2.138].
[14] Criminal Law Revision Committee, Evidence (General) Report No 11 (1972).
[15] Criminal Law Revision Committee, Draft Criminal Evidence Bill cl 1(1) and (2) and [28]-[52], cited in New South Wales Law Reform Commission, The Right to Silence Report No 95 (2000) at 2.55.
[16] New South Wales Law Reform Commission, The Right to Silence Report No 95 (2000) at 2.58.
[17] Michael Howard, House of Commons (UK) Hansard, 11 January 1994 at 26-27.
[18] R v Argent [1997] 2 Cr App R 27, R v Imran and Hussain [1997] Crim L.R. 754; R v Roble [1997] CLR 346.
[19] Betts and Hall [2001] 2 Cr.App.R. 16; R v Nickolson [1999] Crim. L.R. 61.
[20] [1997] 2 Cr App R 27 at 33.
[21] [1997] 2 Cr App R 27 at 33.
[22] [1997] 2 Cr App R 27 at 33.
[23] Approved by the English Court of Appeal in R v Cowan [1995] 4 All ER 939; Condron v The Queen [1997] 1 WLR 827.
[24] R Pattenden and L Skinns, ‘Choice, Privacy and Publicly Funded Legal Advice at Police Stations’ (2010) 73(3) Mod. L. Rev. 349.
[25] M Findley, S Odgers and S Yeo, Australian Criminal Justice (Oxford University Press, Melbourne, 3rd ed., 2005) p. 61.
[26] D Dixon, ‘Common sense, legal advice and the right of silence’ (1991) Public Law 233 at 240.
[27] Dixon, n 27, p. 241; D Brown, PACE Ten Years On: A Review of the Research (1997) at 171-184 cited in Findlay et al, n 26, p. 60.
[28] Findlay et al, n 26, p. 61.
[29] New South Wales Law Reform Commission, The Right to Silence at 2.66.
[30] Lauren Farrow, ‘Lawyers warn against NSW silence changes’ News.com.au (22 March 2013) [http://www.news.com.au/breaking-news/national/lawyers-warn-against-nsw-silence-changes/story-e6frfku9-1226603497077].
[31] Greg Smith, New South Wales, Legislative Assembly, Second Reading Speech to the Evidence Amendment (Evidence of Silence) Bill 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013 (Hansard), 13 March 2013 at 85.
[32] Tara Ravens, ‘NSW laws passed to end right to silence’ News.com.au (20 March 2013) [http://www.news.com.au/breaking-news/national/oppn-slammed-over-nsw-right-to-silence-law/story-e6frfku9-1226601328430].
[33] (2004) 137 FCR 209 at 228.
[34] Mills v Meeking (1990) 69 CLR 214 at 235; 91 ALR 16 at 30-31.
[35] (2004) 137 FCR 209 at 230.
[36] (2004) 137 FCR 209 at 231.
[37] New South Wales Law Reform Commission, The Right to Silence at 2.74.

Elias v The Queen; Issa v The Queen [2013] HCA 31

Case Note: Elias v The Queen; Issa v The Queen [2013] HCA 31

Facts and Background

The appellants, George Ellias and Chafic Issa, were charged and pled guilty before the Supreme Court of Victoria for the common law offence of attempting to pervert the course of justice (at [2]). These charges arose out of the conduct of the appellants in assisting the infamous Tony Mokbel (“Mokbel”) to hide from authorities and flee Australia to Greece (at [8]-[9]).

Under the Crimes Act 1958 (Vic), s 320 the maximum penalty for attempting to pervert the course of justice is 25 years. The appellants were each sentenced to 8 years (at [2]).

These sentences were appealed in the courts below on the basis of the principle enunciated in R v Liang (1995) 124 FLR 350 at 355 (“Liang”) that where, on the facts, the prosecution could have charged a defendant with an offence that carries a lesser penalty, and it was as, or more appropriate to proceed with that lesser charge, then the judge should take into account that lesser penalty in sentencing (at [1]).

Here, Mokbel was charged with offences under the Customs Act 1901 (Cth) (at [7]). As such, the appellants might have been charged under the Crimes Act 1914 (Cth), s 43 for attempting to pervert the course of justice, or under the Crimes Act 1958 (Vic), s 325 for being an accessory after the fact (at [10]). Both offences carried significantly lesser penalties (5 years) than s 320.

However, an argument based on Liang was rejected by both the sentencing judge and the Victorian Court of Appeal. The appeal before the High Court proceeded on the basis that the Victorian Court of Appeal was wrong, insofar as it held that Liang only applied to considering offences within the same jurisdiction (at [4], [22]), and that it did not consider the maximum penalty for the less serious State offence (at [4]).

The Decision

The High Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) first considered the substance of the principle in Liang. The court, noted the statement of Winneke P (at [13]) that,

“although it is for the prosecuting authority in its absolute discretion to determine which particular charge it will lay against an accused person, it is nonetheless relevant and proper for the judge on sentence to take into account as a relevant sentencing principle the fact that there was another and less punitive offence which not only could have been charged but indeed was as appropriate or even more appropriate to the facts alleged against the accused.” (at 355).

In tracing the history of the principle, the court noted that the requirement is for the lesser offence to merely be “as appropriate” not more so (R v McEachran (2006) 15 VR 615 at 636 [51] per Redlich JA) (at [17]). The Victorian Court of Appeal accepted Redlich JA’s application of the principle in the appellants’ case (Pantazis v The Queen (2012) 268 FLR 121 at 124 [3]) wherein it held the principle was a means by which the court’s discretion to impose a sentence it regards as appropriate is not fettered by the prosecutorial discretion to charge whatever offence it decides. It held this was based on the principles of achieving consistency and parity in sentencing – “It requires that the court should strive to impose similar punishment for similar offences committed by offenders in similar circumstances.” (Pantazis v The Queen (2012) 268 FLR 121 at 129-131 [28]) (at [21]).

The High Court though, after considering Liang, comprehensively rejected it. Firstly, it considered that implicit in the Victorian Court of Appeal’s formulation of the principle in Liang was that “the court sentences on its assessment of the offending conduct and not for the offence” (at [26]). As a matter of logic, it follows that if a court is permitted to take into account the fact that a defendant’s conduct might have resulted in a conviction for a lesser offence, then why should a judge “not take into account facts disclosing a circumstance of aggravation that could have been, but was not, charged”? (at [26]). As per Gibbs CJ in R v De Simoni (1981) 147 CLR 383 at 389, the latter represents a breach of a fundamental rule that no one should be punished for an offence of which they were not convicted; a court cannot take into account in sentencing “circumstances of aggravation which would have warranted a conviction for a more serious offence.”

The second basis was that Liang proceeded on a misconception of the court’s discretion in sentencing; the fact that simply because a defendant is being sentenced for an offence does not mean the court is engaged in a mechanistic exercise with a range of predetermined outcomes (at [26]). Rather the maximum penalty for an offence merely represents the worst case, the facts of which a court is invited to compare the facts of the case before it to (at [27]). It is the duty of the court in doing so to balance various factors against one another in pursuit individualised justice, and this is reflected by there being a wide sentencing discretion often afforded to the court (at [27]). Therefore, the maximum penalty for an offence does not constrain a court or force it to impose an inappropriately harsh sentence; it provides a yardstick by which to measure the penalty it so decides on, with reference to the facts both in the case before it, and those facts that would meet the yardstick (the worst case scenario).

The third basis was that Liang violated the principle of consistency in sentencing. It cited with approval the judgment of Glesson CJ in Wong and The Queen (2001) 207 CLR 584 at 591 [6] that while discretionary decision making can never be uniform, due to various factors, including that cases are adjudicated by different judges, such consistency is something to be strived for; “The administration of criminal justice … should be systematically fair, and that involves, amongst other things, reasonable consistency.” (at [28]). Individual offences, by their very nature and the exercise of judicial discretion have “differing elements and differing maximum penalties.” (at [29]). These elements and penalties each represent part of a “constellation of factors” the courts take into account when sentencing (at [29]). This constellation is broad enough without introducing those factors that have been developed and apply to other offences, therefore consistency is not achieved when sentences for different offences are taken into account which may likely have a whole different constellation of factors to them (at [29]).

The fourth basis was that the principle in Liang violates the separation of functions between the prosecution and the courts. The discretion of the prosecutor to determine the charge is its own (at [35]). In support, the court cited with approval the judgment of Dawson and McHugh JJ in Maxwell v The Queen (1996) 184 CLR 501 at 514:

“No doubt a court may, if it thinks it desirable to do so, express its view upon the appropriateness of a charge or the acceptance of a plea and no doubt its view will be accorded great weight. But if a court does express such a view, it should recognise that in doing so it is doing no more than attempting to influence the exercise of a discretion which is not any part of its own function and that it may be speaking in ignorance of matters which have properly motivated the decision of the prosecuting authority.” (at [34]).

Furthermore, prosecutors have a duty of fairness in exercising their functions, and in the event that the discretion to prosecute a particular charge was exercised for an improper purpose, the court has the power to relieve against such abuse (at [35]). However the time for doing so is prior to the entry of a plea, not after, else the court risks compromising its own impartiality and independence in substituting its own judgment for that of the prosecution’s (at [35]).

Finally, the appellants argued that Liang echoes the principle of parity as discussed in Green v The Queen (2011) 244 CLR 462 at 472-473 [28] (per French CJ, Crennan and Kiefel JJ) insofar as such is founded in “considerations of fairness and equal justice” (at [23]). The court was dismissive of this contention as, for the reasons above, the “norm of equality … is not disturbed by sentencing an offender for the offence for which he or she has been convicted.” (at [30]).

The appeals were therefore dismissed, and the principle enunciated in Liang was rejected (at [37]-[38]).

Analysis and Conclusions

In this decision, the High Court, by its own admission, has effectively turfed thirty years of Victorian jurisprudence. In doing so though, it noted that Liang had been comprehensively rejected by the NSW Court of Appeal (R v El Helou (2010) 267 ALR 734 at 750 [90] per Allsop P, Grove and Hislop JJ agreeing) (at [18]). However, several challenges can be made to the various grounds on which the court based its reasoning.

With regard to the first basis, that considering a lesser sentence must logically allow the court to also consider a more serious one, the courts have always assessed penal matters in favour of defendants, regardless of if they could logically be construed as admitting otherwise. For example, penal statutes are always construed in favour of defendants; an extreme example is that I have noted in Director of Public Prosecutions (Cth) v Keating [2013] HCA 20 wherein the High Court completely disregarded the clear purpose of the Social Security (Administration) Act 1999 (Cth), s 66A.

The second basis misconceives what Liang stood for, which was that where the sentencing judge believes a charge with a lesser sentence was more appropriate, such should be taken into account. This does not somehow mandate that the lesser penalty should be imposed, it merely asserts that it should be a factor in exercising the court’s discretion. It is much like how in administrative law decisions there are factors that must be taken into account in reaching a decision, and even though the decision maker may have reached the same decision were they not considered, said decision may be challenged if they were left out.

The fourth basis, that Liang breaches the separation of function between the prosecution and the court is also answered by the above conclusion in relation to the second basis, as it does not mandate the judge overthrow the prosecution’s discretion. Indeed, the prosecutor may argue for the maximum sentence and fail. It is therefore recognised that the prosecution’s discretion is fettered by the court’s in sentencing as a matter of course, and Liang simply introduces a factor in determining sentence.

The third basis, of Liang violating principles of consistency in sentencing, seems to ignore the fact that the Victorian courts have proceeded quite happily with Liang for thirty years, and have found it to be a workable enough principle to apply without inconsistency resulting. Indeed, if the factors a judge may take into account are known, and they are shown to have been used workably for such a long period of time, the practical realities would demonstrate such fears of inconsistency are unfounded.

The final basis, that rejecting Liang is not inconsistent with the norm of equality also means, in light of the preceding discussion, that nor is accepting Liang inconsistent with the norm, if a court forms the view that an offence with a lesser penalty was as appropriate as the one charged, and that is simply a factor to be taken into account.

It appears the decision is based solely on the view that Liang was a mandatory rule to be applied unflinchingly. If that were so then the decision is surely correct. But if Liang merely introduces a factor to be taken into account in the court exercising its discretion in sentencing, then it appears all the High Court has achieved is that a factor in sentencing that the courts were required to previously enunciate will now slink back to the recesses of the judicial mind. It is beyond strange to assume that judges will not, even subconsciously when passing sentence, consider lesser relevant offences and will not form a judgment as to their appropriateness. These considerations always impact on sentencing. In which case the principle in Liang will now become something that will likely continue to be applied, which practitioners will surely know about and still direct their minds to, but which shall never be acknowledged or spoken of. I do not see how that is something we should be pleased about.