The Hon Justice Michael Kirby
The study of criminal law in Australia is coming into its own. Mind you, the upper echelons of the legal profession still tend to look down their noses at crime. This may be because of the old adage "crime doesn't pay". Ordinary citizens, politicians and media barons think otherwise. To them, crime is the most fascinating part of the law. It far outranks in interest the lucrative corners of commercial disputes, bills of sale and mortgage law. Ordinary citizens are right. The top lawyers are wrong. The criminal law helps to define the type of society we are. The procedures of the criminal trial represent not only a public drama - a kind of metaphor for bringing the accused wrongdoer to justice and resolving contested claims about guilt. Criminal law also symbolises the extent to which we place checks on the power of the state in order to prevent wrongful convictions.
Forty years ago, when I was at university, the teaching of criminal law in Australia had to get by with English textbooks. The standard work was by Cross and Jones. Every law student salivated (if that is the word) over the grizzly quandary of the becalmed shipmates in the Queen v Dudley and Stephens. It will be remembered how they were tried for murdering a cabin boy to eat his flesh in order to survive. Did their desperate necessity afford them a defence in law? (Answer, no. They were sentenced to death, although this was later commuted to six months imprisonment). The criminal case books were full of weird and gory stories. Like all law students, I pounced upon them.
I was taught criminal law by Mr Vernon Treatt QC, a Sydney barrister and aspiring politician. It was a sign of those times that the subject did not rank a full time professor. A part time barrister was considered quite enough. Treatt would enter the St James' Theatre in Sydney, that doubled in the afternoons as a lecture hall. He would throw his hat on a chair, and start reading lectures that had not changed in a hundred years.
What a difference four decades make. At that time, very few cases involving criminal law were heard by the High Court of Australia. The judges tended to share the professional disdain for criminal law. This may have derived from Chief Justice Dixon's distaste for having to follow English precedents with which he disagreed. That was then a duty enforced by the ever present possibility of an appeal to the Privy Council. In 1963, even Dixon had had enough. In Parker's case he refused to follow a decision of the English judges on the subject of criminal law. He regarded what their Lordships had written as legal heresy. He said that it was not the law in Australia. Eventually, the English law lords gave way on the point. It was a declaration of judicial independence by the High Court. More was to come. Now that independence, and not just in criminal law, is total. The Privy Council is gone forever.
The big shift towards hearing more criminal appeals in the High Court came with Chief Justice Barwick in the 1970s and Chief Justice Gibbs in the 1980s. Both of them were judges who were keenly interested in the criminal law. In this attitude, they were joined by their colleagues: lawyers of great intellect and insight. Even sentencing appeals came to engage some of the High Court's time. Nowadays, according to the annual reports, criminal cases constitute about a quarter of the applications for special leave to appeal in the High Court. That proportion has grown in recent years. So have the numbers. In 1977 there were 14 applications in criminal cases. Last year there were 114.
In the forty years of my professional life, the subject matters of the criminal law in Australia have radically changed. This is confirmed by the new book Principles of Criminal Law by Simon Bronitt and Bernadette McSherry, just published. The staple diet of murder, offences against the person and against property is still there. But now the punishable offences are greatly expanded by new crimes or by aspects of old offences that once did not trouble the courts. The latter include female genital mutilation; sado masochistic assaults; stalking; offences by people living with HIV knowingly infecting others; various drug offences; computer crime; unlawful invasion of privacy by electronic means; money-laundering; sexual trafficking; underage sexual assaults overseas; corruption of overseas officials; child pornography on the Internet and so on. New defences also fill the pages of contemporary case books, such as battered woman syndrome and the so-called gay panic defence.
Some old offences have been repealed. These include the infamous "crimes against nature" that oppressed male homosexuals in the Australia of my youth. It took the intervention of international law; but eventually those offences were banished from the statute books. Yet even today, there are significant differences in the age of consent to private sexual conduct. In New South Wales it is 16 years in the case of females but 18 in the case of males. It is 21 years in Western Australia for males. This discrimination bears out the authors' suggestion that, in many areas, the criminal law continues to be more concerned with men's business and to treat the concerns of men more seriously than those of women.
Other laws that have changed include the law on suicide, pornography and prostitution. Some changes have been brought about by the courts - such as the abolition by the High Court of the rule that a husband could not be guilty of raping his wife. But many offences have been altered, or repealed, by parliaments, reflecting the changing values of society and the different attitudes to what is so antisocial that we should punish the perpetrators as criminals.
The lesson of so much change, in such a relatively short time, is this: What are the "crimes" we accept today that will not find a place in an edition of a book on criminal law forty years from now? Will all the drug offences still be there? Or will we, as I suspect, by then be treating most of the instances of drug abuse and dependence as problems of public health rather than of law and order? Will abortion remain as it largely is: an offence on the books but so circumscribed in practice that it is rarely, if ever, enforced according to the letter? Will we by then have found a different way to define unlawful termination of pregnancy? Or will this problem be overtaken by new controversies surrounding the use of embryonic stem cells, utilised in scientific research and experimentation?
The Pinochet case in England last year was an early indication of the growing influence of international criminal law on legal practice. In that case, the House of Lords ordered that the former Chilean president be extradited to Spain to face charges for crimes allegedly committed not in Spain but in his own country, Chile. In forty years time will the criminal process of every country be adapted to ensure that dictators and others guilty of genocide, torture and war crimes have no corner of the world in which to hide? Will we have accepted the principle of "universal jurisdiction" for war crimes and like offences in the courts of every country? Will the International Criminal Court be a success? Will crime increasingly be an international phenomenon, globally addressed rather than one basically reflecting the concerns of local communities?
Through the criminal law runs what lawyers are pleased to call a golden thread. The accused who faces the great power of the state has certain basic rights. The right to be presumed innocent. The right to have the accusation proved beyond reasonable doubt to the satisfaction of the judge or jury. The right to be free of forced self-incrimination. The right to confront accusers and to test their evidence. During the past forty years the High Court has added a further right, crucial to the proper operation of a legal system such as ours. It is the right, in effect, when facing a serious criminal charge, if otherwise unable to afford a lawyer, to have one provided by the state if that is necessary for a fair trial. That basic right was rejected by Chief Justice Barwick and the majority of the High Court in 1979 - over the dissent of Justice Murphy. But the Court changed its mind. In 1992 in the Dietrich case, it upheld that right. Perhaps in forty years time Australians will have a charter of fundamental rights included in our Constitution, like most other civilised countries. This is not a matter of being soft on crime. It is a question of defining the type of society we are and want to be.
Criminal law is the great centrepiece of any legal system. It must change and adapt with changing attitudes. It must pay regard to new problems, new technology and new social attitudes. In my professional lifetime, Australian criminal law has come from being a post-colonial backwater of the English legal system to a highly developed system of our own. Politicians and many citizens have contributed to this process. And the High Court has also played, as it continues to do, a crucial role in the process of change. Criminal law should attract the best lawyers in the country. No other branch of the law is so important. It is where our commitment to fair trial and the rule of law are tested every day, in courtrooms throughout the nation. It is where fear of wrongdoers intersects with respect for basic rights. Against the clatter of constant elections, where law and order have become a regular whipping boy, we must continue to get the balance right.
(*)The above is the text of an address by Justice Michael Kirby in Melbourne at the launch of Principles of Criminal Law, 2001, Law Book Company, by Simon Bronitt and Bernadette McSherry. This will be held on 22 February 2001 at 5:15pm at the Australian and New Zealand Society of Criminology Conference at the University of Melbourne. For further details contact Dr Bernadette McSherry on (03) 9905 3353 or [email protected].