Deputy Director of Public Prosecutions (NSW)
Does the Common law system of criminal justice protect or infringe upon the rights of the defendant?
The primary goal of the law of criminal procedure is achieving a system that respects the rights of the individual whilst maintaining society’s legitimate interest in preserving the peaceful cooperation and co-existence of its citizens. This is the case in civil law jurisdictions as much as it is in the common law jurisdictions. In order to achieve that goal there must be balance between the rights of the individual and the right of the State to prosecute those who wilfully breach the law.
At the outset what must be recognised is that, to be successful, a criminal justice system must reflect the society that it seeks to protect. By its very nature it will be conservative rather than contemporary in its recognition of rights, whether they be the individuals or societies. It is man made not preordained. Whilst not static the system is reactive rather than pro-active. They system is biased if favour of those who make the law. It is designed to deal with what are perceived to be “social” evils and as such it is not possible to have universal laws covering all societies. Having said that there are sufficient similarities between some societies for laws and systems to be relevant and adaptive to different countries. The common law is but one such an example.
There are a number of identifiable objectives which are necessary to provide support to the criminal justice system. Those objectives can be categorised into perhaps overlapping sub-headings such as truth, justice, evidence and the balancing of individual rights against state rights. How those objectives are achieved in the common law system employed in New South Wales involves considering the role played by such matters as: the presumption of innocence and the standard of proof, the defendant’s right to silence, open justice, the roles of the jury, the judge, the police, the prosecutor and defence counsel in the adversary system and the attainment of a fair trial. It will only be with that background that consideration can be given as to whether the rights of the defendant are adequately and properly protected. Each of these topics referred to provide fertile ground for examination in detail but by necessity it is only possible to provide an outline in the paper.
The adversary system
The system of justice practiced in Australia is often described as ‘adversary’ or ‘accusatorial’ as opposed to ‘inquisitorial’. The adversary system is not simply defined. In the Australian Law Reform Commission report No 89 the Commission quoted the Law Council of Australia’s definition of the adversary system as
“A specific type of proceedings taking place in a court which deals with a dispute between at least two parties…..The dispute is ‘party controlled’, that is, the parties define the dispute, define the issues that are to be determined and each has the opportunity to present his or her side of the argument.”
The extent to which the criminal justice system can accurately be described as adversary is open to question. In 1979 Lord Devlin said,
“What happens now is that inquisitorial procedure is conducted, but by the police, and the collection facts is done by the police; however rich you may be as a defendant, however powerful, you could not begin to have the resources of the police to collect your evidence for the defence. So we rely upon the police to the job that the procurator fiscal or the juge d’instruction does abroad. And, to the extent, we have made the police inquisitors.” 
Whist that statement also holds true for NSW it also highlights some to the practical weaknesses of the common law system. The police’s role is to solve the crime but that usually involves obtaining the identity of a suspect and then acquiring sufficient evidence to convict that individual. There is little or no pre-trial supervision by the Court in relation to the compilation of the brief. In fact the compilation of the brief of evidence which is transmitted to the defendant at a magistrate’s hearing does not usually contain evidence which exculpates the defendant. Having said that the brief of evidence provided by police is the only compilation of evidence undertaken in the case. It results in most cases in the defendant pleading guilty. A plea of guilty is a legal admission by the defendant of having committed all of the elements of the crime and consequently there is no need to assess the objective evidence to determine guilt. In fact the evidence obtained by the police is referred to in the sentencing proceedings in order to determine the seriousness of the breach of the criminal law involved. The judge analyses the evidence for that limited purpose so that sentence can be pronounced.
The procedure of accepting a plea of guilty to the crime does not reflect the purest expression of the adversary system. It has many things in common with the inquisitorial system. The judge generally merely accepts the brief of evidence produced by the State; listens to any evidence called by the defendant and then pronounce sentence. However, if there is evidence whish is in dispute, such evidence must be proved beyond reasonable doubt and may be the subject of challenge. The adversary system is generally regarded as applying at the time of the trial and it that procedure which is discussed below.
The purest expression of the adversary system – the criminal trial
In the context of a criminal trial the truth is said to emerge from the presentation by the prosecution and defence of alternative versions of the facts before a neutral arbiter, either judge or jury, based on evidence each side has gathered. The role of the judge and the jury is passive. In the adversarial pre-trial process, the parties prosecute; they decide the scope of the dispute and decide, largely autonomously and in a selective manner, the evidence to be presented in court. The adversarial trial itself is oral, continuous and highly confrontational. Parties use cross-examination of the witnesses to undermine the opposing case and discover information the other side has not brought out. 
Some of the disadvantages of the adversarial system include the lack of judicial management in the pre-trial phase that often leads to long delays between the alleged offence and the trial of the case.  These delays, combined with an insistence on oral evidence and the exclusionary rules of evidence, result in a selective presentation of evidence through witnesses whose recall so long after the events is often adversely affected. The combination of these factors does not lead necessarily to an identification of the truth. In R v Griffis the South Australian Court of Appeal said,
“The judgement of Apostilides impliedly affirms the continuance unimpaired of the adversarial system in Australian criminal courts. A trial is not an inquiry into the truth of an issue but is concerned simply with the narrower question whether the Crown has proved its case against the accused beyond reasonable doubt. The witnesses are to be called by the parties, not the judge, and while an exception to the general rule is recognised in Apostilides it is significant that no example or illustration is given of a valid exception. I note that what Dawson J referred to as “only in exceptional circumstances” in Whitehorn has been strengthened in Apostilides to “save in the most exceptional circumstances”.
That is not to say that a significant object of the proceedings is the attainment of the truth. In Commissioner, Federal Police v Propend Finance Pty Ltd Kirby J said,
“The adversarial system is based on the assumption that if each side presents its case in the strongest light the court will be best able to determine the truth.”
Moreover the attainment of the truth is one of the primary responsibilities of a prosecutor.
The arguments in favour of the adversary system are said to be,
“(a) The direct involvement of the judge in the investigation of a case will lead to his being pre-disposed to a formulation of the critical propositions, whether or law or fact, and towards a particular conclusion. This is aptly described as bias though it be engendered by no improper motive. If it occurs, it is likely to be socially disturbing,
(b) Therefore the judge is best kept out of the arena,
(c) A contest which is far, and appears fair requires:-
(i) unambiguous statement of the issues by the contestants
(ii) facilities for the powerful and unrestricted presentation of opposing cases, factual and legal, by the contestants;
(iii) judicial decision on what is litigated, with, in general, complete indifference to the consequences.”
When the matter is a criminal trial a vital participant is the jury. The other participants are the judge, the prosecutor, representing the State and the defence counsel, who represents the accused. The roles of each of these participants are described briefly below. The victim has no formal role to play in the proceedings that determine guilt other than that of a witness. 
The Judge – in a criminal jury trial the judge’s role is that of the sole arbiter of the law. He or she also adjudicates between the parties (the prosecution and the defence). The role is crucial in the obtaining of a fair trial in that he is the one who determines what evidence will be before the jury. In the adversarial system the judge has the power to exclude evidence which, although obviously relevant to the full presentation of the facts, is said to be unfairly prejudicial to the accused; has been improperly obtained or where the tender of the evidence may lead to an unfair trial due, for example, to the unreliability of the evidence. A simple example of evidence that would routinely be so excluded is evidence of the accused’s other criminal convictions. Once the evidence is before the Court he judge’s role is to explain the legal parameters within which the jury may make their factual conclusion.
The second mentioned of these roles is largely governed by precedent provided by appeal courts. The first role is guided by precedent but relies heavily upon the judgement of the individual judge. A failure to fulfil these roles is often said to lead to the conclusion that the trial was not a fair one. A miscarriage of justice occurs if an accused person does not receive a fair trial. A fair trial in this context is a trial conducted according to law, and as fair as the court can make it. If a miscarriage of justice is found to have occurred an appeal court may direct that the trial be heard again or that the appellant be acquitted.
The trial judge’s role is crucial one for, together with judicial precedent, he or she is the arbiter of what amounts to a fair trial. Essentially that role is to act as the fulcrum between competing interests. “It is important that guilty people are convicted. It is even more important that innocent people are not. There can be no guarantee about achievement of either objective. The courts can only strive to attain them. The best contribution that judges can make is to insist the trial be fair.” 
The jury – has often been referred to as the body constitutionally charged to determine the facts of the case. In fact the role of the jury commenced well before there was a constitution either in Australia or New South Wales. It is said to be rooted in the Magna Carta. But at the very least in New South Wales its role commenced, initially with members of the armed forces making up the jury, in 1832/ Subsequently this devolved into 12 ordinary citizens. The jury, 12 members of the public picked at random, has been described as one of the great rights and legacies of English law.
In Doney v The Queen the High Court spoke of the genius of the jury system in that,
“…it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. If is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and in, the case of conflict, what evidence is truthful.”
The role of the jury is to determine the factual issues between the parties. That role is undertaken paying full regard to the legal directions given by a trial judge. The decision of the jury must be unanimous, whether guilty or not guilty, but once made is final.  A failure to agree on a verdict will often lead to a further trial having to be conducted.
The Prosecutor – the role of the prosecutor in a criminal trial is to select and present all of the evidence to be relied upon by the State. The prosecutor calls witnesses to give evidence orally and in open Court. Their evidence is primarily as to what they heard and saw. In addition relevant documentary evidence may be tendered in evidence. An example may be record of interview conducted between the police and the accused.
C S Kenny, Outlines of Criminal Law (19th edition, 1966) pp 611-612 stated “the proper role” of prosecuting counsel in the following terms:
“A prosecuting counsel stands in a position quite different from that of an advocate who represents the person accused or represents a plaintiff or defendant in a civil litigation. For this latter advocate has a private duty – that of doing everything that he honourably can to protect the interests of his client. He is entitled to ‘fight for a verdict’. But the Crown counsel is a representative of the State, ‘a minister of justice’, his function is to assist the jury in arriving at the truth. He must not urge any argument that does not carry weight in his own mind, or try to shut out any legal evidence that would be important to the interests of the person accused. ‘It is not his duty to obtain a conviction by all means; but simply to lay before the jury the whole of the facts which compose his case, and to make these perfectly intelligible, and to see that the jury are instructed with regard to the law and are able to apply the law to the facts.’ ‘It cannot be too often made plain that the business of counsel for the Crown is fairly and impartially to exhibit all the facts to the jury. The Crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that the truth should be know, and that justice should be done.’”
This independent role might initially be equated with that of a judge in civil law system but it must be firmly kept in mind that the prosecutor is an advocate for the Crown not an independent arbiter of the facts.
In NSW the State representative is bound to accordance with DPP Guidelines. Those guidelines provide a basic framework as to how each and every defendant will be prosecuted. In addition prosecutors are bound by the Bar Rules applicable to barristers in practice in NSW. 
Defence Counsel – the role of the defence counsel is to act without fear or favour in defence of his client. Whilst counsel has a duty to the Court the primary responsibility is to the client. The manner in which the defence is conducted is for counsel to determine provided that such defence is consistent with the client’s instructions and includes matters such as choosing between which of two inconsistent defences is to be put forward. Generally counsel will cross-examine the witnesses called by the Crown in order to create doubt as to the scenario portrayed by their evidence or simply to allow for a submission that their evidence was not reliable and could therefore be discounted by the jury. The role is unrelentingly confrontational.
It will be for the defence counsel to determine the extent of any evidence to be called in defence of his client. The role can involve the necessity to act as an investigator in order to discover evidence or facts which might be inconsistent with the guilt of the client. It is the execution of this role that highlights the difference in the position of the defendant in the adversary system compared to the defendant in the civil law system. What evidence is acquired by the defendant will be solely as a result of his efforts (or those representing him). It will require an input of both intellectual and economic resources, both of which may be missing from a defendant. Any such evidence acquired need not be shared with the prosecution. The defendant in the adversary system does not have the administrative and financial advantages possessed by the prosecution. The advantages possessed by the prosecution are numerous and are detailed below. As noted below one of the potential disadvantages for a defendant in an adversary system is that a trial can proceed without him or her being represented by counsel.
balancing the resources of the State against those of the defendant – Equality of arms
As already noted the integrity of the criminal justice system depends upon a fair balance being struck between the rights of individuals suspected by the State of criminal misconduct and the right of the State on behalf of its citizens to investigate and prosecute those suspected of the commission of criminal offences. With the evolution and sophistication of both police forces and investigative technology, detective work and trial procedure have had to change too. All of these changes pose difficulties for the defendant who continues to maintain his or her innocence in the face of police evidence.
In New South Wales the extent of the powers of the police to obtain, refine and scientifically investigate evidence is extensive. A short review of those powers (which will undoubtedly do them a disservice) is considered below. All of these powers are said to be necessary in or der to trap the ever more sophisticated criminal. However, “‘[e]xperience should teach us to be more on our guard to protect liberty when the Government’s purposes are beneficent. The greatest dangers to liberty lurk in the insidious encroachments by men of zeal, well meaning but without understanding.” 
It is as well that Courts and judges have been careful to treat with considerable suspicion encroachments upon individual liberty by the State especially in a system of justice which treats the defendant as an adversary. It is beyond the scope of this paper to consider all of the jurisprudential issues relevant to the balance between the State and the individual. The topic has been the subject of Royal Commissions and Law Reform Commission reports as well as significantly writings by legal authors. 
the power of the State
A phrase often used by judges and defence counsel and resented by Crown Prosecutors is “the unlimited resources of the Crown”. It suggests that the Crown has unlimited resources to prosecute defendants in any and every trial, which of course it does not. The statement is clearly hyperbole but when compared to the resources of a defendant, even a wealthy defendant, the resources available to the Crown are enormous and multifarious. They involve the power to obtain evidence, even covertly. They include the ability by a phone call to obtain trained investigatory services from the police, even in relatively minor cases. Moreover and perhaps most significantly the Crown is always represented by a lawyer or at the very least by someone trained in law (a police prosecutor for example). Some of these advantages are detailed below.
The power to obtain evidence
In New South Wales the police have extensive powers to compulsorily obtain evidence once they have reason to suspect the commission of an offence. At the basest level the police have the power to arrest a defendant who is suspected of having committed or being about to commit an offence.  The suspicion must be based on reasonable grounds. The suspicion may be based on hearsay material which may itself be inadmissible in Court provided the material has probative value. Once in custody the defendant may be searched and anything found may be taken from him. The defendant can be asked questions although he is not compelled to answer. The defendant is not provided with a lawyer to assist him in his dealings with the police although he is free to engage a lawyer if he can afford one. Moreover the police are authorised in certain circumstances to fingerprint the defendant and to take medical samples such as blood and hair. The defendant can also be photographed for the purpose of identification.
There is a range of other powers to deal with specific cases such as when the police suspect the defendant of being in possession of weapon which allow police to search for and seize items of evidence. There is also the power to stop and search any vehicle in which a police officer reasonably suspects if anything is stolen. When the focus of the investigation is drug related the police have substantial additional powers.
In addition the police are able to call on the services of other police forces throughout the world to investigate criminal activity. This ability will be of ever increasing importance due to the increased sophistication of business and technology now being employed which effectively overcome national boundaries.
Perhaps a more invasive form of investigation involves the use of electronic surveillance devices. Devices such as miniature microphones sometimes coupled with video recorders can be implanted covertly into the homes and offices of unsuspecting defendants in order to obtain evidence of the commission of a crime. The police may also use communication technology (phones, mobile phones) to both listen in on conversations of defendants as well as track their movements. Another form of surveillance now commonly available is the public video record. Many public places, banks, clubs and other businesses record video material as a form of security. The police are often given access to this material. It can be used to identify a defendant as well as to track the defendant’s movements.
Whilst the use of most electronic surveillance by the police is strictly controlled, requiring the issue of a warrant from a Supreme Court Judge. Warrants will only be provided in circumstances where the police are able to provide the Court with some evidence sufficient to justify a reasonable suspicion of criminal activity. However, the power of the police to use such devices far outweighs the ability of the defendant to legally obtain evidence of his innocence.
The relatively widespread use of forensic body material to attempt to identify a DNA sample from a potential defendant has been a boon in the solving of many crimes. It has however placed extra burden on the defendant. As with all technology it is susceptible to error. It provides a form of circumstantial evidence which is often treated as conclusive. It means that a defendant who denies a charge may be called upon to employ an expert to firstly check the evidence provided by the State and secondly, if there has been any error or if the DNA evidence is open to challenge in some other way call the expert in his case.
The collection of evidence is for the police. It is only after sufficient evidence is obtained that a charge is laid. The use to be made of the evidence is for the prosecutor to determine. One method of bringing balance into the system is disclosure of the collected material to the defence. In NSW the Director of Public Prosecutions requires the police to provide a disclosure certificate with the brief of evidence identifying all evidence held by them including evidence which might be relevant to the defendant. However, the fact that evidence found by the police is disclosed does not completely answer the defendant’s problem of having to collect evidence to rebut the police evidence. Moreover, the analysis of the police evidence is often itself a matter for a trained lawyer in consultation with the defendant (and sometimes with expert witnesses).
Clearly legal representation is a vital issue to be considered when one discusses equality of arms.
Given the vastly superior investigatory resources available to the State how is it possible that a balance is achieved? There are fundamental protections given to the defendant that have the effect of redressing the balance. In particular those include the presumption of innocence and the defendant’s right to silence and the requirement for the case to be proved beyond reasonable doubt. The advantage for the defendant is that he or she need not say anything, at the investigatory stage or at the trial, but can simply rely on the presumption of innocence and if the evidence is not sufficient to meet the standard of proof he will not be convicted. Suspicion, even the gravest of suspicions, that the crime has been committed is never sufficient. Therefore the trial cannot be looked at simply upon the basis that each side will produce their evidence and the side with the best evidence will win. There is no need for the defendant to produce any evidence at all and he will still be presumed to be innocent up until the jury are satisfied on the evidence produced by the Crown that he is guilty beyond reasonable doubt.
Further the trial judge has the discretion to remove legally admissible evidence from the State’s case on a number of grounds. Evidence may be held to be inadmissible on the grounds that it was improperly obtained or that its probative value is substantially outweighed by the prejudice that it could cause the defendant. In practice this power is widely used to blunt prosecutions. For example in NSW confessions made to the police which are relied upon by the Crown are only admissible if they have been legally recorded on video tape. Identification evidence will only be admissible if there has been a line up or the offer of a line up. These (and other) evidentiary rules provide the defendant with significant additional protection against the potential misuse by the police of their investigatory powers.
As previously noted the State is always represented in proceedings before a Court.
The same is not always true for the defendant. It would appear obvious that those who fare best under the adversary system are those who are represented by a lawyer.
Generally in relation to cases of serious crime heard before a jury the defendant is represented.  Those who can afford to pay for representation have a wide selection of experienced lawyers to choose from. For many others however there is no choice but to rely upon legal aid. Funding for legal aid in NSW in recent years has been under constant attack. Even when funds are available for representations the amount offered to undertake the work is such it is less likely to attract the most able and experienced barristers.
Despite this any representation is important in a case involving a serious crime. A considerable forensic burden rests with the legal representative for the defendant. By the time the case has comes to trial there will already have been conducted a committal hearing before a magistrate at which time the State will have provided the defendant with the evidence upon which it relies to make out the charge. It would generally be beyond a defendant himself to be able to identify which of the State’s evidence might be held to be inadmissible by the trial judge. Important legal considerations are involved. Without legal representation the defendant is reliant upon the judge to advise him or her of their legal rights. Moreover, given the oral tradition of the common law system, the examination and cross-examination of witnesses is a specialised field requiring the input of experienced advocates. Without the assistance of such an advocate a defendant is inevitably placed at a disadvantage.
Whilst the State has great power to mount a case against an individual that power is limited to the obtaining of evidence and the presentation of that evidence in Court. The presentation of the evidence by the prosecution is carried out following guidelines provided by the DPP (as earlier discussed). These guidelines are applied in every case. The guidelines provide that the “prosecutor’s role is to assist the court to arrive at the truth and to do justice between the community and the accused according to law and the dictates of fairness.”  The prosecutor does not act for the police in the conduct of the proceedings but acts for the community in the public interest. In that regard the role of the DPP itself acts as a balancing force to prevent overzealous or improper application of the resources of the State against individual defendants.
Once the cases comes to trial the judge has the power to ensure that only properly admissible evidence comes to the attention of the jury. If the State has overstepped the boundaries and improperly obtained evidence then that evidence will not be admitted unless the admission of the evidence can be justified. Further, as previously noted the trial judge has the power to reject otherwise admissible evidence on the ground that its probative value is exceeded by the prejudice that it would cause the defendant. There will be many factors that might sway a trial judge in the exercise of the discretion to reject or admit evidence. He will be referred to other cases in which judges have rejected evidence or in which a Court of Appeal has dictated that certain factors be taken into account. The judge will also be influenced by the prevailing perceptions of the quality of the evidence such as the quality of the police evidence.  Even after the evidence is admitted before a jury the judge is required to warn the jury before they reach a verdict of any weaknesses in the evidence. One such example relates to evidence given by a co-defendant. That evidence is regarded as unreliable and the judge must warn the jury about its potential unreliability. Ultimately when the trial process is complete in NSW only 43% of those charged with serious criminal offences are convicted at trial. 
Once a jury has reached a verdict of guilty beyond reasonable doubt the defendant has an absolute right of appeal. The State does not share that right of appeal against an acquittal. The defendant must show that there was a miscarriage of justice in relation to his trial or that the verdict of the jury was unreasonable having regard to the evidence. There are many such appeals and in many cases the appeals result in fresh trials or acquittals. 
The combination of the rights of the defendant before trial, the power of the Court to restrict evidence, the directions given to the jury in relation to legally admissible evidence and the defendant’s right of an appeal combine to generally balance the power of the State to prosecute. Moreover whilst the State has great resources those resources must be applied in every case and are therefore stretched. All of these factors tend to erode both the perception and actuality of a balance in favour of the State.
Having said that there are weaknesses in the system. It is common for the defendant to be unrepresented at stages of the criminal justice process due to a lack of legal aid. For example it is quite common for a defendant to be unrepresented at summary hearings before magistrates. Moreover there is generally no legal representation available to defendants at the time of arrest unless they obtain private legal advice. Of course the police do advise the defendant of his right to remain silent and the fact that the defendant chooses to exercise that right cannot be used in evidence against him. However it is still the case that the most potent weapon in the Crown case is a police confession taken shortly after the commission of the crime and usually before the defendant has had legal advice. Many defendants are disadvantaged both intellectually and financially. Legal aid, at the earliest possible opportunity, would tend to eliminate any lingering doubts that the rights of those defendants (whether they be described as human rights or common law rights) are being overridden during the investigation process by the police.
 “The practice of Judging”, The Listener, 1979, vol 101, pp 441-2.
 Ratten v The Queen (1974) 131 CLR 510 per Barwick
 In New South Wales in 1998 the median delay between charge and conviction (it is slightly different for acquittal) was 594 days: New South Wales Criminal Court Statistics 1998.
 (1196) 91 A Crim R 203 at 207
 (1984) 154 CLR 563, (High Court of Australia)
 (1983) 152 CLR 657, (High Court of Australia)
 (1997) 188 CLR 501
 “By Good Disputing Shall the Law be Well Known”, Mr P D Connolly QC (1975) 49 ALJ 685
 DPP Guidelines do provide for consultation with the victim prior to some important decisions being made with regard to the case. The victim may be provided with compensation for criminal injury inflicted by the crime. Also there is provision for the victim to provide a statement as to the effect of the crime which can be taken into consideration on sentence.
 R v Davis (1995) 81 A Crim R 156 at 165 (Full Federal Court of Australia)
 Chidiac v The Queen (1991) 171 CLR 432
 Constitution Act 1902 (NSW)
 New South Wales Law Reform Commission, Criminal Procedure “The jury in a criminal trial”, DP 12 (1985), pp 19-20
 (1990) 171 CLR 207 at 214
 The only matter of disturbing a guilty verdict of a jury is by appeal. In an appeal the defendant must establish that a miscarriage of justice occurred in the trial. The State has no equivalent power to appeal an acquittal of the defendant.
 The NSW DPP Guidelines also recognise and apply a number of international conventions such as the United Nations Convention on the rights of the Child and the United Nations Guidelines for Prosecutors. They also recognise legislation in NSW in relation to the rights of victims. The Office of Director of Public Prosecutions also recognises and applies the International Association of Prosecutors Standards of Professional Responsibility.
 R v Birks (1990) 48 A Crim R 385 at 391
 Olmstead v United States, 277 US 438 (1928) per Brandeis J of the United States Supreme Court
 For a collection of relevant writings on the subject see: (Runciman) Royal Commission on Criminal Justice, 1993 (England); Review of the Civil and Criminal Justice System, Law Reform Commission of Western Australia, Project 92 February 1999, Review of the Adversarial system of litigation, Australian Law Reform Commission Report. See also Cases and Materials on the English Legal System – Michael Zander, sixth ed. 1993 for a collection of relevant materials.
 See generally parts 10, 10A and 10B Crimes Act (NSW) 1900
 In NSW there are still rare cases where an accused will go to trial unrepresented. Generally this only occurs in cases where because of the financial resources of the defendant legal aid is refused and the defendant refuses to pay for private counsel. On other occasions defendants simply sack their counsel which results in them presenting their own case.
 NSW DPP Policy and Guidelines, the Role of the Prosecutor – Prosecution Policy paragraph 1.
 For example, in NSW there was a Royal Commission into the Police Force. Prior to the Royal Commission it was common to hear the comment from a judge or magistrate to the effect, “why would the (police) officer lie”. That comment is no longer heard. So many reasons were exposed as to why and in what circumstances police do in fact lie.
 1998-1999 Annual Report Office of Director of Public Prosecutions.
 Supra, 57 out of 125 Conviction Appeals were successful.