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Legislative Assembly for the ACT: 1999 Week 1 Hansard (16 February) . . Page.. 122 ..

MR STANHOPE (continuing):

The privilege against selfincrimination has been dealt with by the courts on a number of occasions. Probably the leading case on the issue in Australia is a 1993 case, Environmental Protection Authority v. Caltex. In that case Chief Justice Mason, as he then was, and Justice Toohey, in a combined judgment, gave some detail on the historical basis of the privilege and a modern rationale for the privilege. I will take a moment to refer to that judgment. They gave the background of the historical basis of the privilege. They relied on Wigmore on Evidence to provide an historical basis which goes back to the ecclesiastical courts in England and the Court of Star Chamber which first began to develop rules on unjust methods of interrogating accused persons. It culminated - I am sure members will be interested to know - in 1645 in a declaration that the use of the oath was unlawful. Another strand on privilege developed in common-law trials. By the second half of the seventeenth century the privilege against selfincrimination was well established at common law, which then affirmed the principle that no person is bound to accuse himself.

The modern rationale for the privilege against selfincrimination has also received significant comment in the judgment and I think there are aspects of that which each member of this place should have regard to in determining a position on clause 87. The modern rationale for the establishment of this privilege against selfincrimination is basically the same as that which was originally proposed or posited. It goes to the protection of an individual from being confronted by what is a very cruel dilemma - the dilemma of being punished for refusing to testify on the one hand as opposed to being punished as a result of truthful testimony that may lead to a conviction, or even, in a third instance, I guess, being punished for perjury if they lie. So these issues in relation to a person charged are really serious.

We do have different methods of punishment these days, but the philosophy behind the privilege has become refined. The privilege is now generally and broadly regarded as being an internationally recognised human right. I quote Justice Murphy in the case of Rochford v. Trade Practices Commission in which Murphy commented:

The privilege against self-incrimination is a human right, based on the desire to protect personal freedom and human dignity.

This was a position that was echoed in the Supreme Court of Canada in the Amway case where it was stated that the privilege against selfincrimination "is an explicit right of a natural person, protecting the realm of human thought and expression". The right not to be compelled to testify against oneself or to confess guilt is also embodied in article 14(3)(g) of the International Covenant on Civil and Political Rights. The language of the Covenant on Civil and Political Rights makes it very clear that the purpose of its provisions is to protect human rights. Australian courts recognise international law and its judgments. Whilst they are not binding, of course, they have great persuasive influence, and this privilege has been well developed.

The fundamental principle of the common law in relation to the privilege is that the onus of proving guilt beyond reasonable doubt rests on the Crown. That is complemented by the elementary principle that no accused person can be compelled by process of law to admit the offence with which he or she is charged. An accused person is not bound to incriminate himself.

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