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The High Court's struggle with the self-incrimination privilege

The High Court's struggle with the self-incrimination privilege

By Dr Cosmas Moisidis


In a series of cases involving examinations by crime commissions or under proceeds of crime legislation, the High Court has found itself divided and inconsistent in its decisions. In resolving these cases, the Court has looked to its understanding of the fundamental principle of the adversarial criminal trial, namely that the burden of proof is on the prosecution and its companion rule that an accused cannot be compelled to assist in the discharge of that burden. In this process a tension has emerged between statutes promoting truth-seeking and a proof-oriented rationale for the adversarial trial. Divisions in the High Court In X7 v Australian Crime Commission(X7)1 the High Court held that the Australian Crime Commission Act 2002 (Cth) (ACC Act) did not “require or authorise the examination of a person with respect to offences with which that person is charged and whose trial is therefore pending”.2 In Lee v New South Wales Crime Commission (Lee No. 1)3 the power to compulsorily examine under the Criminal Assets Recovery Act 1990 (NSW) (CAR Act) in circumstances where the appellants risked being examined in relation to pending charges, was upheld.

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