CRIMINAL LAWYERS' ASSOCIATION NORTHERN TERRITORY BALI CONFERENCE 28 JUNE 1999 THE FUTURE OF CRIMINAL LAW - SOME BIG ISSUES The Hon Justice Michael Kirby AC CMG 1 INTRODUCTION Looking to the future is perilous. Judges who have been around for a very long time run the risk of overlooking the perils - assuming that things will go on as they have done in the past. I have held judicial office for almost 25 years. Throwing caution to the winds and encouraged by the congenial company and the venue, I propose to embark upon the folly of a few predictions about the future of criminal law in Australia. I will not get down to the engine room in which intrepid officials are struggling to develop and reform Australia-wide principles of criminal law. The High Court of Australia is now quite often referred to their labours2. Not infrequently, I have found them helpful to my reasoning3. Rather than review that work, I propose to draw upon recent experience to comment on a few large themes. My themes are those that seem likely to me to influence some of the future directions of criminal law, procedure and punishment in Australia. Of course, the number of such themes is virtually limitless. The law journals are full of articles upon them. Necessarily, my treatment must be selective. But I hope that my selection will stimulate further thinking. In the daily practice of the law it is essential to focus the mind with precision upon the detail of the case in hand. But it is also important for Australian judges and lawyers occasionally to look at the entire landscape. And to see some of the dilemmas which are presented by our discipline, and specifically by trends affecting criminal law, procedure and punishment. In days gone by, these were matters which were often looked upon with scarcely disguised contempt by leading judges and members of the legal profession. In part, this was because other areas of professional activity commanded, as they still do higher incomes for their specialists. Such areas of practice tended to command the loyalty of the most talented lawyers available. In recent decades, however, attitudes of this kind have begun to change. Citizens have always regarded the criminal law as the most important branch of the law. Citizens were not wrong. Since the time of Chief Justices Barwick and Gibbs especially, a larger part of the work of the High Court of Australia has involved criminal appeals. A more recent contributing factor to this trend may have been the decision of the Court in Dietrich v The Queen4. This effectively ensured that those accused of serious criminal offences who cannot afford legal counsel will usually be entitled at trial to the provision of legal representation, if necessary at public cost. This development, which involved the reversal of earlier authority of the Court5helps to ensure Australia's compliance with Article 14.3 of the International Covenant on Civil and Political Rights. That provision includes amongst the rights of every person charged with a criminal offence the rights:
INTERNATIONALISATION AND CRIME A singularly vivid indication of the growing role of international law in response to criminal conduct can be seen in the election of Justice David Hunt, soon after his retirement as Chief Judge at Common Law of the Supreme Court of New South Wales, to the office of a judge of the International Criminal Tribunal for the Former Yugoslavia. Now His Excellency Judge David Hunt resides and works in the Hague in the Netherlands. He brings to his international office a breadth of experience in the conduct of criminal trials in Australia and intensive work in the Court of Criminal Appeal of New South Wales. He succeeds Sir Ninian Stephen as a judge of the Tribunal. Some of the defence and prosecution counsel of the Tribunal and registry officials are also Australians. The chief prosecutor, Louise Arbour, is a judge of the Ontario Court of Appeal in Canada. Her predecessor was Richard Goldstone, now a judge of the Constitutional Court of South Africa. In July 1988, at a conference in Rome, member countries of the United Nations agreed upon a statute for the International Criminal Court6. This Court may be expected in due course to replace the International Tribunal for the Former Yugoslavia and the other International Tribunal, for Rwanda. The development of international institutions of this kind parallels the creation of the Royal Courts in England 700 years ago. During the course of this century various international conventions and treaties have been adopted such as the Geneva Conventions I to IV and the United Nations Treaties on Genocide, Crimes Against Humanity, War Crimes and the Crime of Apartheid. These are bound to develop into offences which will enliven the jurisdiction of international courts and tribunals. Moreover, as has been demonstrated by the Pinochet litigation in England7, some crimes are now treated as crimes of universal jurisdiction. They demand responses from national courts although the crime concerned was not committed within the jurisdiction of the nation whose courts are involved. Another development of an international character which is potentially important to the criminal law is the growing recognition of the role which the international law of human rights will play upon municipal lawmaking and municipal court decisions. In Australia, we saw a vivid illustration of the former aspect of this phenomenon in the outcome of the first complaint made against Australia under the First Optional Protocol to the International Covenant on Civil and Political Rights. Mr Nicholas Toonen complained that Australia was in breach of the Covenant by reason of the provisions of the Criminal Code of Tasmania8. He alleged that these exposed him and his partner to the risk of criminal prosecution in Tasmania for adult private consensual homosexual conduct. The United Nations Human Rights Committee upheld his complaint9. Because, at first, the Tasmanian Parliament was resistant to amendment of the provisions of the Criminal Code , the Federal Parliament enacted the Human Rights (Sexual Conduct) Act 199410. This provided that "sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights ". Mr Toonen and his partner, Mr Rodney Croome, commenced proceedings in the High Court of Australia against the State of Tasmania for declarations that, by reason of the federal statute, the provisions of the Tasmanian Criminal Code were inconsistent and to that extent invalid by force of s 109 of the Constitution. The State's attempt to strike out the writ and to challenge the standing of Mr Croome and Mr Toonen to bring their proceedings failed11. The Tasmanian Parliament promptly enacted a measure repealing the old laws. It substituted a non-discriminatory provision of the Criminal Code treating in identical ways unlawful sexual conduct, including with minors, whether heterosexual or homosexual. The Toonen case is a singularly vivid illustration of the practical way in which, today, international law can be brought to bear upon domestic law, including in the field of criminal law. Another way in which this influence can be felt was explained by Brennan J in Mabo v Queensland [No 2]12. Writing there about the land rights of Aboriginal Australians, Brennan J made a point of general application:
An illustration of how the international law of human rights (specifically the International Covenant on Civil and Political Rights) may affect local decision-making in a criminal context can be found in Young v Registrar, Court of Appeal and Anor [No 3]13, a decision of the New South Wales Court of Appeal. That was a case where a contemnor was committed to prison as the law then provided, by the Court of Appeal. His trial for contempt was required to take place before a bench of three judges. Because of these judicial arrangements, he had no right of appeal; simply an entitlement to seek special leave to appeal to the High Court. When special leave was rejected, Mr Young invoked in the Court of Appeal Article 14.5 of the International Covenant on Civil and Political Rights. This provides that "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law". Powell JA, faithful to the dualist school, regarded the international principle invoked by the prisoner as irrelevant. Handley JA and I treated it as available for use in the construction of a provision of domestic law. We both agreed that a person imprisoned for contempt, whether civil or criminal was, "convicted of a crime" within the meaning of Art 14.5 ICCPR . However, Handley JA found that the right to apply to the High Court for special leave to appeal sufficiently satisfied the requirement of the Article. Accordingly, there was no possible clash with local law. I held that there was a clash but that local law was clear and therefore had to be obeyed. The case is an interesting illustration of differing contemporary judicial approaches to the influence of international law, where it is invoked by a party in a criminal proceeding. It seems likely to me that we will see many more cases of this kind. Since Young, in the High Court of Australia, I have suggested that Australia's Constitution, as an instrument which speaks not only to the people of Australia who made it but to the international community of which Australia is a part, may likewise be construed in the case of ambiguity so that it will conform to international human rights norms14. It remains to be seen whether this proposition will be accepted by the Court. But the simple idea seems irresistible in the long run. The next century will see the detailed working out of the relationship between the growing body of international law and the domestic law of each jurisdiction. Particularly since Australia signed the First Optional Protocol to the International Covenant on Civil and Political Rights and thereby rendered the compliance of its courts and officials with fundamental rights answerable to the United Nations Human Rights Committee, it seems safe to predict that courts will treat with increasing seriousness arguments which suggest that a particular construction of the law would bring Australia into conflict with its international obligations. If another construction is available, courts of the future will ordinarily favour that other construction15. TRANSBORDER CRIMES One of the obvious factors which stimulates the influence of international treaties is the growing integration of the world. Jumbo jets take us within a day virtually to anywhere on the planet. Connections by telephone, facsimile, email and the Internet are virtually instantaneous. This integration stimulates the growth of international law and of international institutions. It encourages a shared concern about the provision of adequate responses to conduct happening anywhere in the world, shown in global media, which is regarded as so contrary to basic human dignity and rights and social concessions as to be criminal. Considerations such as these help to explain the establishment of the first such international tribunals, including the International Military Tribunals at Nuremburg and Tokyo after the Second World War. They also help to explain, for example, the recommendations made by the group of experts for Cambodia chaired by Sir Ninian Stephen in their report to the General Assembly of the United Nations of February 199916. This report recommended that the Security Council of the United Nations established an ad hoc international tribunal to try Khmer Rouge officials for crimes against humanity and genocide committed between 1975 and 1979. That proposal is still under consideration. The Royal Government of Cambodia appears to have rejected it, opting instead for a national court with international assistance. But, like the indictment of President Milosovic of Yugoslavia by the International Tribunal and the extradition order against ex-President Pinochet of Chile, it shows that even heads of government and their collaborators are no longer entirely free from the reach of international criminal law. Outside developments of this kind, changes in travel and technology increase and alter the opportunities for seriously damaging wrong-doing to the person and property of people in other national jurisdictions which call out for effective systems of criminal law and effective law enforcement across national boundaries. In particular fields such as those affecting drug law enforcement, overseas corruption of officials and child sex tourism, the legislatures of various countries, including Australia, have begun to respond17. We will certainly see more legislation of this kind. But it remains local jurisdiction invoked in a traditional way against persons within the reach of the jurisdiction concerned. Yet this is an area where the traditional requirement of locality in criminal law presents particular difficulties. An example often cited concerns the way in which interactive technology impinges upon traditional notions of domestic sovereignty. A Norwegian social researcher published findings about NATO defence arrangements. These were contained in documents, publication of which was restricted under Norwegian law. The researcher was convicted of espionage in Norway. However, the documents had been retrieved, on line, pursuant to the Freedom of Information Act of the United States of America. The Spycatcher litigation similarly illustrated the way in which, information, once published somewhere and available in one jurisdiction, is next to impossible to re-contain it by laws and court orders18. I do not doubt that similar difficulties may arise in Australian attempts to police erotic material on the Internet. Indeed the Federal Minister, Senator Alston, has conceded as much19. Computer crime and fraud present special difficulties for harmonising established criminal law with the very nature of information technology. Whereas crime is typically local, being defined with strict precision in relation to a particular jurisdiction (including, commonly, a subnational jurisdiction in a federal country such as Australia) the manipulation of information technology may not so readily be squeezed into this approach. For example the definition of "theft" in domestic law normally involves asportation - the taking away of goods. However, for the purpose of acquiring valuable information, no goods may be taken. There may be no carrying away of property at all. In a number of States of the United States of America, laws have been passed by which "property" is defined to include "information including electronically processed or produced data and computer software and programs in either machine or human readable form"20. Case law in Canada has grappled with this subject. In The Queen v Stewart21, an individual sought to obtain names, addresses and telephone numbers of the employees of a hotel. These were protected by the hotel's security system. He approached a security worker and offered to pay for the confidential data. This approach was reported. The accused was charged, inter alia, with counselling theft of information, the property of the hotel and its employees. At his trial he was acquitted. It was held that information was not, as such "property" as defined by the law of theft in Canada. A Bill to extend the Criminal Code definition of "property" expressly to include computer data and software was reported by a Parliamentary Sub-Committee in the negative. The Committee said22:
The moves which a nation can realistically take to protect itself in a world of interacting informatics are limited. For example, Dresser (France) was a subsidiary of Dresser Industries of the United States. Overnight, it was denied access to a computer which stored the specifications for manufacturing components of pipeline equipment. In the result, the French subsidiary was unable to manufacture the equipment for the trans-Siberian pipeline to which the United States Government then objected. The French subsidiary lost an order worth millions of dollars24. There are many such stories, some of them involving deliberate harm. Illustrations exist which are pertinent to criminal law. A Miami Branch of the Bank of Nova Scotia was served with a subpoena by a United States grand jury demanding production of the bank's information held in its branches in the Cayman Islands and in the Bahamas. The bank was unable to comply because the information requested in documents and systems in the Caymans and Bahamas was protected there by the laws of those Caribbean countries. An application to the Cayman Islands courts, seeking permission to release the information, resulted instead in the issue of an injunction to prevent such release. In spite of this, the United States courts supported an application by the United States Department of Justice and imposed a fine on the bank of $25,000 a day until the information was produced. The Canadian Government, both in diplomatic exchanges and in amicus curiae briefs in the United States court, asked, in effect, what would be the United States attitude if the government (or even a court) of a Middle Eastern State in which the bank maintained an office issued an order, supported by sanctions, requiring the bank to disclose information concerning the alleged business relation between a customer of its Miami office and Israel25. The extra-territorial operation of laws, particularly laws of the United States of America, has caused legislative responses in several countries. The issue is partly a political one26. But the point is that integrated information technology has presented the need for new laws, and indeed new approaches, including in the field of criminal law. The technology has also presented the urgent necessity of improved cooperation between police services in different jurisdictions. Faced by the difficulty of investigating, prosecuting and securing convictions against persons involved in transborder crimes, it may be a natural response of police to concentrate on the familiar local criminality where the transborder complications do not arise. Yet it may be that transborder crime works greater harm upon society and affects more victims and greater losses to those afflicted. Thinking globally is not an injunction restricted to business entrepreneurs. It applies equally to well organised, large scale criminals. There is an urgent need to reform criminal law and police cooperation to respond adequately to this new dimension of crime. This is particularly so where what is involved goes beyond old fashioned couriers physically crossing borders with illegal goods27and where instantaneous technology is utilised in the service of anti-social objectives. HUMAN GENOME AND CULPABILITY Information technology has provided the means of sequencing the human genome. The Human Genome Project, involving cooperative scientific research on geneticists in all parts of the world, is the greatest scientific project in history. Its purpose is to understand the function of approximately 100,000 human genes. These dictate physical characteristics and the presence and likely development of inherited illnesses and disorders. But it also seems likely that, at least to some extent, genes will be discovered which will help to explain patterns of behaviour relevant both to crime and punishment. A recognition that inborn "defects", genetic "errors" if you like, can dispose certain people to act in a way unacceptable to society (and hence to its criminal laws) seems clear enough. But how the law should deal with this problem remains as uncertain today as it was in Lombroso's day28. For a long time, criminal law has recognised the relevance of genetic disorders which affect the mental processes of the accused. Similarly, the predisposition of males to commit more violent acts than are conventionally performed by females, is something recognised by every criminal system. But whereas a genetic disorder affecting the capacity of the subject to reason and to perceive the wrongness of his or her conduct may be taken as relevant to criminal culpability, no court would entertain as an excuse the simple plea that the accused was a male victim of his genes29:
Scholars in the field of criminal law are now beginning to consider the possible impact on the basic hypothesis upon which criminal law and punishment are built of the discovery of genes which influence behaviour30:
Obviously, the advances in DNA technology have begun to have important consequences for evidence in criminal trials and in particular in the proof that an accused was physically present at the scene of the offence33. But the point I raise is an earlier and more fundamental one. It concerns the link between biological factors and criminal conduct. This was an hypothesis first raised by Lombroso in 187634. Lombroso set out to verify his hypothesis that criminality was reflected in orthological signs. He believed that there was a statistical correlation between somatic bodily constitution and crime. Because he was not favoured with knowledge about DNA and the results of sequencing of the human genome, he dabbled in theories concerned with facial structure. Of course these are now totally discredited35. But the fundamental notion that congenital or hereditary factors may at least sometimes determine criminal conduct is likely to have much more attention in the years ahead. One expert has commented36:
DRUG OFFENCES The approximate coincidence of this paper and the Drug Summit in Sydney in May 1999 make it appropriate to reflect upon the future response of Australia's criminal laws to the problems of drug addiction and recreational drug use. It does appear that Australia's politicians and police may be ready to consider fresh approaches to drug policy. Thus Police Commissioners Peter Ryan (New South Wales) and Neil Comrie (Victoria) have suggested that current strategies need reconsideration. Politicians, including Mr Jeff Kennett, Ms Kate Carnell and Dr Brendon Nelson< have called for a new approach which places greater emphasis on considerations of liberty and effective restraints than on the implementation of order by use of draconian deterrence. The so-called zero tolerance policing followed in some parts of the United States of America as a response to widespread and growing drug use has been reported negatively by Australian experts who have studied it37. Certainly, one indication of the social problems into which our present legal strategies have taken us is the report that Australia has a higher rate of burglary even than the United States. Car theft and other property crimes in Australia are unacceptably high. They are above those of most European countries and even most parts of the United States38. According to the Director of the Australian Institute of Criminology, the rate of armed robbery in New South Wales has increased by 105% over the past five years. These are all indicators of sharp increases in crimes connected with money procurement. Every lawyer knows that a large proportion of these crimes is connected with drug use. In New South Wales, Australia's first Drug Court opened in February 1999. Modelled on a United States precedent, it offers heroin addicted criminals an option to undergo rehabilitation instead of prison. But the Director of Public Prosecutions for New South Wales (Mr N Cowdery QC) has suggested publicly that a more radical solution is needed in the form of regulation of drug supply as an alternative to prohibition which underpins much of our criminal law in this area39. A recent report issued under the authority of the World Health Organisation notes that crime committed by heroin users fell by more than half during a trial in which subjects certified as heroin addicted were supplied with the drug. The report was commissioned by WHO in 1996, apparently after concerns were voiced about Swiss studies of the heroin trial which had begun in Switzerland in 1992. The report found that 8% of the 1,146 patients involved in the programme gave up illicit drugs altogether. About 3% died. The number of homeless participants fell from 12% to 1% after 18 months. The number of participants who had regular employment rose from 14 to 32%. One of the Australian authors of the WHO report, Dr Robert Ali, is reported as stating that the panel found the heroin trial was expensive when compared with methadone programmes. It cost $18,500 a year to treat a patient on the heroin programme compared with $3,000 a year for methadone. However, Australian commentators have pointed out that persons addicted to heroin cost the community at least $70,000 a year in law enforcement, health and other expenses. If to these costs of current strategies against illegal drugs are added the financial, emotional and other burdens of drug related crime, it seems clear that our present legal approach is economically extremely expensive40. Following earlier remarks by his counterpart Mr Cowdery, the Director of Public Prosecutions for South Australia, Mr Paul Rofe, reportedly told an Australasian conference on drugs strategy in Adelaide in April 1999 that the present attempts to combat the supply of drugs by way of criminal law enforcement were not working and that "new means of regulating the supply and distribution of drugs were needed"41. This opinion drew a reported rebuke from the Prime Minister (Mr John Howard). However, it seems likely that Australia is now entering a new phase in the consideration of its response to illegal drug use. Any change in the present criminalisation of selected drug manufacture, importation, supply and use would have to occur within the context of a national strategy and, applicable international obligations. The matter is one of great importance and urgency for the thousands of Australians criminalised by the present approach of the law and for their families who often watch with despair and anguish the intermittent fall of the criminal law on a person they love, see in danger and regard as sick, not evil. No doubt, the current approach of our criminal laws has achieved an unmeasurable success in terms of its deterrent impact on the conduct of some persons who might otherwise have been tempted to import, obtain and use illegal drugs. But it seems likely that the many failings of the current laws, their consequences for the human rights and dignity of many fellow citizens, the erosion of civil rights of many citizens by the investigative necessities of the current laws and the burden on those who are suffering from high levels of consequential crime, will ultimately continue to manifest themselves in legal change. Criminal lawyers, who see the human face of those caught up in illegal drug use, and their families, have an obligation to bring what they see to the notice of their fellow citizens who may have more confidence than is warranted in the capacity of criminal law and punishment to deliver results. CONCLUSIONS There are many other questions which require attention in a consideration of the major issues confronting the Australian criminal justice system today. They include: The ways in which speedier trials can be achieved, not only for the accused (who may be in no hurry) but for society42;
The effective use of legal aid funds both at trial and on appeal, given the special disadvantages which the unrepresented litigant faces in legal proceedings conducted according to the common law tradition43;
The many pressures to modify or abolish the right of the accused to silence44and the often little understood advantages of adhering to the accusatorial system of criminal justice which puts the onus on the state and its agencies to prove the guilt of the accused, imposing ordinarily no obligation on the accused to demonstrate innocence45;
The introduction of majority verdicts in trials for State offences46;
The potential for injustice in cases of seriously delayed criminal accusations and in particular in circumstances of "recovered memory", statutory limits on the entitlement of the accused to test the evidence and inducements to false accusation said to be made by victim compensation payments and sensational or chequebook journalism47; and
The way the basic principles of the criminal justice system in Australia can be reconciled with effective policing, including by the use of undercover agents and deception48. This is a time of great change in criminal law, procedure and punishment. It is important that the changes should come about as a result of serious community debate informed by expert professional and academic opinion drawing upon effective and up to date statistical and other criminal data. All too often, these essential ingredients for the debate are missing. Instead, solutions to community concerns about crime are offered in an unseemly political auction at election time in which candidates compete for a "virile image", sometimes encouraged by identifiable sections of the media49. We have seen many unseemly illustrations of these phenomena in Australia in recent years. Part of the blame must be accepted by the judiciary and the legal profession for failing to explain the present system with its strengths and weaknesses and to debate openly and candidly the options for effective reform. This association has a membership and objectives which make it an appropriate communicator of reality. I hope that it will accept that responsibility. In comparison to most other systems of criminal justice in the world, ours still has many strengths. But in times of great national and international change, technological challenges and political and popular pressures, this is not a time for reticence. It is a time for plain speaking about large and small issues of the present and the future, some of which I have considered in this paper.
|