Anonymous Accusers

66 Pages·2010·3.89 MB·English

Anonymous Accusers: An
Historical & Comparative
Analysis of Secret Witnesses in
Criminal Trials
[A]nonymous accusations must not be admitted in evidence as against any one, as
it is introducing a dangerous precedent. and out of accord with the spirit of our
times.
Roman Emperor Trajan, 1 12 AD
Yet evil as was all this. the crowning infamy of the Inquisition in its treatment of
testimony was withholding from the accused all knowledge of the names of the
\+itnesses against him.
Henry Charles Lea, 1887~
A central and defining feature of the adversarial system of criminal trial is the right
of an accused to confront his or her accusers. This right has been variously
described throughout the world as 'basic to any civilised notion of a fair tria~',.o~f
paramount importance to the rights of the defence and the fairness of the trial','
'one of the most important rights of the accu~ed','a~ fundamental right essential
to a fair trial',' .a fundamental human right'7 and '[olne of the fundamental
guarantees of life and liberty'.' It is now enshrined in the International Covenant
on Civil and Political Rights, the European Convention of Human Rights, the
American Convention on Human Rights, the Statute for the International Criminal
Court and Statutes of the International Criminal Tribunals for the Former
Yugoslavia and ~wanda.~
* BEc. LLB Hons. LLM Candidate, Senior Lawyer. National Crime Authority, writing
in a purely personal capacity. I would like to thank Bron McKillop. Alexandra
Colquhoun and Charles Colquhoun for their invaluable comments and advice.
1 Letters of Plrny the Younger. Bk 10, Letter 97, quoted in J L O'Brian, Natronal Securrp and
Indrv~dualF reedom (1955) at 62.
2 Henry Charles Lea, d Hrstory of The lnqu~srt~oonft he 1Llrddle Ages (1887). vol I at 437.
3 R v Hughes [l9861 2 NZLR 129 (hereinafter Hughes) at 148-149 (Richardson J).
4 Sardr v France (1994) 17 EHRR 251 at 265.
5 Whrtehorn v The Queen ( 1983) 152 CLR 657 at 661 (Murphy J).
6 Pointer. v Texas 380 US 400 ( 1965). 404.
7 khnt v DPP (1 994) 73 A Crim R 48 1 at 193 (Kirb~P ).
8 Krrbj~vU S 174 US 47 (1899), 55.
9 See below nn306-369 and accompanying text.
3 62 SYDNEY LAW REVIEW [VOL 24: 361
The right of confrontation encompasses the right of an accused to know the true
identity of his or her accuser^,'^ the right to be present during their testimony1' and
the right to test their evidence through cross-examination -regarded by Wigmore
as 'the greatest legal engine ever invented for the discovery of truth'.12 However,
in light of growing concerns over witness intimidation and national security, courts
and legislatures throughout the world have recently been called on to curtail the
right of confrontation by withholding the true identities of prosecution witnesses
from the accused, permitting them to testify anonymously and prohibiting cross-
examination that could reveal their true identities. Resulting decisions have been
highly controversial, involving issues 'of fundamental importance to the
administration of criminal justice',13 yet there is a dearth of academic research and
commentary in this field.
This article presents an historical and comparative analysis of witness
anonymity.14 Geoffrey Robertson QC has recently condemned the use of
anonymous witnesses as 'a fundamental breach of the right to a fair trial', stating
that 'no trial can be fair if the defendant is not allowed to know his accuse^'.'^
Former Governor-General and judge of the High Court, Sir Ninian Stephen, also
author of a widely acclaimed dissenting opinion on witness anonymity as a judge
of the International Criminal Tribunal for the Former ~u~oslaviah,a's~ r ecently
remarked that no satisfactory resolution has arisen to the 'conflict of rights [which]
arises in its most stark form' in this area.17 Former Chief Justice Mason, in light
of irreconcilable decisions from the Queensland and Victorian Courts of Appeal,18
has also acknowledged that witness anonymity is ripe for adjudication by the High
Court of ~ustralia.'I~t is equally outstanding for the US Supreme Court, the
House of Lords and the Constitutional Court of South Africa.
Hughes; above n3 at 148-149 (Richardson J): 'The right to confront an adverse witness ... must
include the right for the defence to ascertain the true identity of an accuser where questions of
credibilit). may be in issue'; R v Taylor [l9941 TLR 484 (Court of Appeal of England & Wales):
'A defendant in a criminal trial ha[s] a fundamental right to see and to know the identity of his
accusers, including witnesses for the prosecution'.
Leieis v L'S 146 US 370 (1892); US v Gagnon 470 US 522 (1985).
J H Wigmore, A Treai~seo n the Anglo-Amer~canS ystem ofEvidence in Trrals at Common Laio
(3rd ed, 1940) 8 1367 at 29.
R v Strpendiaiy Magistrate ai Southport, ex parte G~bson(h ereinafter G~bson[)l 9931 2 QdR
687 at 690 (Williams J).
In this article 'witness anonymity' means permitting a witness to testify without disclosing his
or her true identity to the opposing side before or during trial. It may involve additional measures
such as disguises. testifying from behind a screen, holding proceedings in camera or video
testimony with facial blurring and voice distortion devices. Witness anonymity differs from
merely w~thholdingth e identity ofa witness from the public, or permitting the witness to testify
under a pseudonym. when his or her true rdentity IS already kndivn io theopposing side.
Geoffrey Robertson, Crimes Agarnst Humanity: The Strugglefor Global Justrce (2000) at 307,
313.
Prosecutor v Tadrc (Protectrve .Measuresfor I'~ctrms and Witnesses) (1995) 105 ILR 599.
Sir Ninian Stephen, 'International Criminal Law and its Enforcement' (2000) 74 AU439 at 442.
Gibson, above n 13; Jarvie v Magistrates 'Court of Victoria (hereinafter Jarvie) [l 9951 1 VR 84.
The Hon Sir Anthony Mason, 'Fair Trial' (1995) Crim LJ 7 at 11.
20021 ANONYMOUS ACCUSERS 363
Part 1 of this article traces the origins of the right of confrontation, identifying
early precedents for and against witness anonymity. Part 2 reviews the modem use
or attempted use of anonymous witnesses in the United States, United Kingdom,
New Zealand, South Africa and Australia. Part 3 examines emerging principles of
international human rights law on witness anonymity, consisting of a rich body of
case law from the European Court of Human Rights and International Criminal
Tribunal for the Former Yugoslavia, along with various conclusions of the United
Nations Human Rights Committee, the Inter-American Commission on Human
Rights and the Preparatory Commission for the International Criminal Court.
l. The Right of Confrontation
The right to be confronted with the witness, and to sift the truth out of the mingled
mass of ignorance, prejudice, passion, and interest, in which it is often hid, is
among the very strongest bulwarks ofju~tice.~~
Over the course of the 17th Century the right of an accused to confront his or her
accusers took root in English jurisprudence, eventually becoming a revered
safeguard of truth, accuracy and fairness in the judicial process. This right was
inherited in British colonies, such as Australia, America, New Zealand and South
Africa, as part of the common law. However, the right did not originate in England.
As recognised by the US Supreme Court, the right of confrontation has 'ancient
roots',21 'with a lineage that traces back to the beginnings of Western legal
culture'.22 The purpose, scope and status of this right today, and many of the issues
and implications associated with witness anonymity, can only adequately be
assessed in the full light of its history.
A. Ancient Roman Law
Roman criminal rocedure during the periods of the Republic and Early Empire
was adversarial?'The accused was entitled to confront and cross-examine adverse
witnesses, either personally or through counsel.24 An early illustration of this right
is provided in the biblical account of the trial of Paul (c 60 AD), who was accused
of sedition as 'a ringleader of the sect of the ~azarenes'.~R' oman Governor of
Judea, Festus, refused requests for the summary execution of Paul, declaring: 'It is
not the manner of the Romans to deliver any man up to die before the accused has
met his accusers face to face, and has been given a chance to defend himself
against the charges'.26
20 McCleskey v Leadbetter 1 Ga 55 1 (1846), 555 (N~sbe.t l)
21 G~eenev McElroy 360 US 474 (1959) 496
22 Coy vloiva487 US 1012 (1988), 1015
23 Charles Phlneas Sherman, Roman La~ms /he Modern World(1917), vol 11 at 484-488, Frank R
Herrmann, & Brownlow M Speer, 'Fac~ngth e Accuser Anclent and Med~evalP recursors of the
Confrontat~onC lause' (1994) 34 Vlrg JIL 48 1 at 484-489
24 Joseph Plesc~a,T he BIN of R~ghtsa nd Roman Lait (1995) at 84, 113, Abel Henry Green~dge,
The Legal P~ocedureof Clcero s Trme (1971), Bk I1 at 487, Sherman, ~d at 484-488
25 Acts 24 5. Acts of Apostles, The Veil Testament
3 h4 SYDNEY LAW REVIEW [VOL 24: 36 1
Under Roman law, '[a]nonymous accusations were not actionable, because,
among other things, the accused ... had the right to confront his accuser'.27 This
rule is documented in correspondence between Emperor Trajan and Pliny the
Younger. Rome, at the time (c 111 AD), was prosecuting a new sect known as the
Christians for alleged subversive activities and Pliny had been sent to govern the
Province of Bithynia. Upon his arrival, an anonymous document was laid before
him containing charges against a number of people who denied they were
Christians. Pliny wrote to Trajan for advice.28 In his rescript, which carried the
force of law,25 Trajan instructed Pliny that 'anonymous accusations must not be
admitted in evidence as against any one, as it is introducing a dangerous precedent,
and out of accord with the spirit of our times'.30
The 3rd Century heralded major change to Roman criminal procedure, with
trial by jury replaced by inquisitorial proceedings before a judge or magi~trate.~'
However, the rule against anonymous accusations remained, as is evident from the
requirement that accusers sign the charge thereby exposing themselves to
-
severe penalties ifthey were found to bear falsewitness. As explained by early 3rd
Century jurist Ulpian, this rule 'was devised so that no one should readily leap to
an accusation since he knows that his accusation will not be brought without risk
to himself'.32
B. Secret Inquisitorial Procedures in tlte Middle Ages
With the demise of the Roman Empire, secular criminal procedures based on
Roman law gave way to crude Germanic procedures based on irrational proofs.33
The Church, however, disapproved of these methods and the ecclesiastical courts
continued to follow Roman trial procedure. The right of face to face confrontation,
as described in the biblical account of the trial of Paul, was regarded as prescribed
bj divine law.34 With the rediscovery of Justinian's Digest near the end ofthe 11th
Century, secular courts also came to apply Roman law and soon criminal trial
procedure in both sets of courts became substantially the same.
Towards the end of the 12th Century a new mode of examining witnesses - in
secret and by the judge alone took hold in both secular and ecclesiastical courts
-
throughout ~ u r o ~Uend.er~ th~e n ew procedure, the examination of witnesses took
place with only the judge and a notary present. The accused could submit questions
~p- pp
26 Acts 25: 16. cited in Greene v .Z~icElroya. bove n21 at 496. Co>.vI ona, above n22 at 1015-1016.
27 Plescia. above 1124 at 84.
28 Letlers of Plrnj. the Younger. Bk 10. Letter 96.
29 Herbert Felix Jolo~ic&r Barq N~cholas.H atorrcal lntroduciron to the Study ofRoman Lav
(3rd ed. 1572) at 365-373
30 Abo\e nl.
3 1 Sliernian. above 1123 at 481-492: Plescia. abo\e n24 at 84. Herrmann & Speer. above n23 at
486-493.
32 Ulpian. Dulres yfPr.ocon.sul. bk 7. quoted in Drgest ofJusrrnrun (533 AD): 48. 2. 7.
33 Herrmann 8 Speer. above n23 at 499-500.
34 See the citations in Herrniann & Speer. above n23 at 495-509.
35 Id at 515-516.
20021 ANONYMOUS ACCUSERS 365
for the judge to put to witnesses, but would only learn what had been said after all
had been examined and a transcript of their testimony was read in court.
Whilst the accused's right of confrontation was severely restricted by the new
procedure of secret examination, it was not entirely extinguished. The residual
right 'to see the witnesses swear'36 remained and was regarded as crucial to the
defence. The benefit to the accused from the minimal right to be present when
witnesses took the oath lay in the opportunity to ascertain their identity and object
to the reception of their testimony. Strict rules governed the right of accusation and
competency in both secular and ecclesiastical courts. A witness could be ruled
incompetent for a variety of reasons, including enmity towards the accused or
association with, and hence presumed partiality towards, the accuser. As
Henmann and Speer have explained:
Knowledge of the identity of the uitnesses testifying against him afforded a
criminal defendant his only opportunity to prevent his conviction on the basis of
testimony of biased witnesses. Thus. the right to see adverse witnesses sworn
might be of critical importance to the defendant. This right uas perceived as so
fundamental that it was preserved even in the fearsome process of 'inquisition'.
which began to take root on the continent of Europe during the thirteenth
century.37
The 13th Century was marked in the realms of both Church and State by
increased emphasis on law and order. Existing criminal procedure was regarded as
too favourable to the guilty so 'the learned lawyers of the 13th Century responded
by tightening the screws - literally and figuratively - in the name of the public
ir~terest'.T~h~e major instrument of the crackdown was a pew inquisitional
procedure of criminal investigation and prosecution. The key feature of the new
procedure was that the inquisitor was free to act on his own accord and 'could
bring suit against any person who might even vaguely be the object of public
r ~ m o r 'A.g~a~in st such persons, torture was legally sanctioned in secular (but not
canonical) inquisitions.
Subjects of an inquisition were denied any right to face their accusers, who
were examined in private by the inquisitor. However, except in one special
situation (discussed below), a kernel of confrontation persisted. Both canonical
and secular law required that the names of all witnesses be furnished to the accused
so that he or she could challenge the reception of their testimony. This rule was
described by the Fourth Lateran Council, in its constitutio 8 (1215) as follows:
36 Albertus Gandinus, Tractatus de maleficris (1301).q uoted in Herrmann & Speer, above n23 at
520.
37 Above n23 at 521-522.
38 Richard M Fraher. 'The Theoretical Justification for the Net+ Criminal Law ofthe High Middle
Ages' (1984) U I11 LR 557 at 585-588.
39 John A O'Brien, The Inqzrisrtion (1973) at 12. Also see Herrmann & Speer, above n23 at 522-
526.
366 SYI>NI:Y I.AW REVIEW [VOL 24- 36 1
He against whom the inquisition is rnadt: shall be present, unless he
contumaciously abscnts himsclf. And the charges which arc the subject of the
inquisition must be set forth to him. so that he may have the ability to defend
himsell: and not only the staienzents, bui also the verv names, of'the witnesses
must be jilrnished to him, so that it may be apparent what was said bv whom, and
his Iegiiimate e.wceptions and ~esponsesm ust be admitted, lest boldness in
d</arning be ajjovded by the szlppression ofnames and in deposing falsehood by
the exclu.sion of.e~ce~tions.~~
The Siete Partidas (1263), a codification of Roman and canon law, similarly
provided that 'the king, or the judges, shall have transmitted to those whom the
inquisition concerns he natlles of the witnesses and their statements; so that they
can defend accordin to their right, speaking against the persons of the inquisition
or their statements'!' The great medieval treatise on criminal law and procedure
of Albertus Gandinus, the Tractatus de mal<ficiis (1301), also instructed
inquisitors to exhibit to their targets 'the names qf the witnesses . . . as well as their
statements, so that false matter spoken by those witnesses may be excluded'.42
It can thus be seen that providing the accused with the names, not merely the
testimony, of adverse witnesses was regarded as so essential to prevent wrongful
conviction that neither Church nor State were prepared to dispense with this aspect
of confrontation, even though they deprived the accused of the right to cross-
examine witnesses. There was, however, one great exception to the rule that
subjects of an inquisition be informed of the identity of the witnesses against them.
C. The Inquisition into Heresy
In 123 1, Pope Gregory IX adapted existing inquisitional procedure into a specific
institution for punishing alleged heretics. This institution eventually spread
throughout Europe and beyond, although it never took hold in England. With a life
spanning more than six centuries, it came to be known simply as 'the Inquisition'
or, as administered in Spain, 'the Spanish ~n~uisition'.~~
The Inquisition was an official arm of the Papacy and differed from
inquisitions into offences other than heresy in many respects. Contrary to tradition,
the Church sanctioned torture and capital punishment.44 Restrictions on
competency were strictly enforced against witnesses for the accused, but none
applied to witnesses against the accused.45 All statements adverse to the accused
'[were] freely received, whether based on knowledge or prejudice, hearsay
evidence, vague rumours, general impressions, or idle gossip'.46 If a witness
revoked his or her testimony, the revocation was only valid if the original evidence
40 Quoted in Herrmann & Speer, above n23 at 525 (emphasis added).
4 1 Quoted in id at 527 (emphasis added).
42 Quoted in id at 528-529 (emphasis added).
43 See, generally. Lea, ahove n2; O'Brien. above n39; Albert C Shannon, The hfedrevalInqur.srtron
(2nd ed. 199 1 ).
44 O'Brien. above n39 at 14: Lea, above n2 at 436437.
45 Lea, ahove n2 at 434. Also see O'Rrien, above n39 at 13.20-21
46 I,ea, The lnqursrtron qfihe Mrddle Ages (1961 ) at 203: Sir Alexander Cardew, ,1 Short Hrstory
oj"the Inyursrtron ( 1933) at 40.
20021 ANONYMOUS ACCUSERS 367
had favoured the accused; otherwise the revocation was The accused was
rarely able to find people willing to testify on his or her behalf because the mere
fact that they supported the accused would have been sufficient to found a
suspicion that they were also heretics, which was enough to justify their torture.48
Lawyers could not assist the accused, for that would make them accomplices.49
'Yet evil as was all this', Henry Charles Lea has concluded that 'the crowning
infamy of the Inquisition in its treatment of testimony was withholding from the
accused all knowledge of the names of the witnesses against him'.50
Lea's conclusion is shared by other renowned historians. For example,
Professor Turberville has stated that '[nlever since its inception in the thirteenth
Century had the Inquisition in any country been fair to the prisoner in the matter
of evidence. ... The refusal to disclose the identity of his accusers was ... his most
serious disability'.51 Sir Alexander Cardew has similarly remarked:
With such principles of ekidence an accused was, at the best. heavily
handicapped. But the disadvantage under which he laboured was immensely
increased by the Inquisition's rule ... \+hich forbade the accused to be furnished
with the names of the witnesses against him ... Such aprohibition must in any trial
have been almost equivalent to a denial of justice.52
The rule of witness anonymity was laid down by Pope Innocent IV in 12.54.'~I t
immediately became 'one of the chief causes of complaint'.54 Some reasons for
this are offered by Lea:
Among the many evils springing from this concealment, which released witnesses
and accusers from all responsibility, not the least was the stimulus which it
afforded to delation and the temptation created to gratify malice by reckless
perjury. Even without any special desire to do mischief. an unfortunate, whose
resolution had been broken down by suffering and torture. when brought at last to
confess. might readily be led to make his story as satisfactory as possible to his
tormentors by mentioning all names that might occur to him as being present at
conventicles and heretications. There can be no auestion that the business of the
Inquisition was greatly increased by the protection which it thus afforded to
informers and enemies, and that it was made the instrument of an immense
amount of false-witness.55
Some commentators have suggested that witness anonymity was justified in
light of the 'virulent, pressing danger' of heresy and the high risk of reprisals
47 Lea above n2 at 434, Cardeu abobe n46 at 42
48 O'Br~ena.b ove n39 at 18
49 0 Br~ena, bove n39 at 19, Lea, above n2 at 445
50 Lea, above n2 at 437
51 Athur Stanley Turberv~lleT he Spanrsh lnqursr~ion( 1932) at 97
52 Cardew above n46 at 41
53 Albert C Shannon The Secrecy of W~tnessesI n Inqu~s~torT~ar~l bunalsa nd In Contemporary
Secular Cr~m~nTalr ~als'I n John H Mundy R~chardW Emer). & Benjamln N Nelson (eds),
Essa~sm Medrelal Lfe and Thought Plesenred m Honor ofAustin Patter son Evans (1955) 59
at 62
54 Elphege Vacandard The lnquisitron (1907) at 167 Also see Henrq Kamen The Spanish
lnqurs~tron( 1965) at 166
55 Lea above n2 at 440
368 SYDNIiY LAW REVIEW [VOL 24: 36 1
against those who testified against their neighbour^.'^ Theodore de Cauzons, for
example, has stated that:
Although [harm to the interests of the accused] so resulted in certain cases, the
inquisitorial custom oSwhich we are speaking had not been invented to hinder the
defense of the accused; it was born of the special circumstances in which the
inquisition was founded. The witnesses. the denouncers of the heretics, had had
to suff'er for their depositions befhre the judges: many had disappeared. stabbed
or thrown into the ravines of thc mountains by the relatives. friends. or
coreligionists of the accused. It was this danger of bloody reprisals which caused
the law of uhich we are speaking to be imposed. Without it. neither the accusers
nor the witnesses would have desired to risk their lives and to depose before the
tribunal at that price: it was necessary, in order to protect them and to make them
talk. to promise them inviolable ~ecrecy.~'
There is no doubt that risk was incurred by witnesses who denounced their
neighbours before the Inquisition. However, it appears likely that the dangers to
such witnesses primarily arose as a result of the peoples' immense hatred of the
institution itself and the fact that 'spite towards and envy of their neighbours seem
commonly to have motivated many such witne~ses'.'~
In some papal decrees it is stated that withholding names from the accused is
an exceptional measure only to be adopted where there is a demonstrated risk to
witnesses in a given case.59 However, whatever may have been the original
intention, once the possibility of witness anonymity was introduced it came to be
applied as 'an invariable rule'.60 Herrmann and Speer have stated that '[tlhis
exception was originally meant to apply on a case-by-case basis. However, the
exception quickly swallowed the rule'.61 Tedeschi has also remarked that:
'Originally intended as a temporary measure during a period of turbulence, it
became institutionalized and a regular feature of inquisitorial proceedings'.62
Cardew has similarly observed that: 'In the early days ... there was possibly some
foundation for this plea. But it came to be applied everywhere, and long after any
such reason existed'.63
The Inquisition was only finally abolished in 1834.64 Its six-century reign
undoubtedly ranks 'as among the darkest blots on the record of mankind'.65 Lea
56 Shannon, ahovc 1153 at 60-6 I Also see John Tedcschi. The Prosecutron of Heresy ( 199 1) at
174- 175.
57 Dc Cauzons, flrstorr-e de L 'mqursrtron en France ( 1912)- vol I1 at 193-194, quoted in Shannon.
above n53 at 61.
58 Isernard Ilamilton, 7he Aledreval /nqzrr.~rfror(?1 981) at 43. Also see Lea, ahovc n2 at 438.
59 Shannon. above 1153 at 6149.
60 Lea, above n2 at 438-439. Also see O'Brien. above n39 at 13.
h l Herrmann & Speer, above 1123a t 535.
62 Tcdesch~a, bove 1156 at 139.
63 Cardew, above n46 at 42.
64 The Spanish Inquisition, established in 1480. was only abolished in 1834: O'Brien, above n39
at xi. 88-90,
65 Will Durant. 7he Storj, q/('rvrlcutror~ (1983) vol IV at 784.
20021 ANONYMOUS ACCUSERS 369
described it as 'a standing mockery of justice - perhaps the most iniquitous that
the arbitrary cruelty of man has ever devised'.66 O'Brien has stated that 'the
procedures of the Inquisition offend[ed] virtually every requirement for the
administration of j~stice'.~R' outinely 'used as a cloak for political and private
revenge',68 there can be no question that 'the system of secrecy was an open
invitation to perjury and malicious te~tirnony'T.~od~a y the very word 'Inquisition'
is synonymous with cruelty and 'stands for the antithesis of fair accusatorial
procedure'.70 Nevertheless, this institution remains the first and foremost
historical precedent for witness anonymity.
D. Englislz Common Law
Trial by jury emerged in England in the 12th Initially, the jurors
themselves were witnesses. Instead of hearing evidence, they decided cases on the
basis of their own knowledge. At the beginning of the trial the accused was
provided with the names of the jurors and was permitted to challenge the presence
on the jury of any person who had been convicted of certain offences or might be
biased or of bad repute.72 If convicted, the accused also had a right to appeal
against the judgment by attacking the honesty of the jurors. Thus, there were
devices designed to prevent unfair or incorrect verdicts that were founded on the
accused's right to know the identity of the witnesses against him or her (the jurors)
and challenge their integrity or impartiality.
By the close of the 15th Century the jury had ceased to be witnesses and
become judges of the facts.73 They soon became dependent on oral testimonies
offered at trial and naturally began to scrutinise the character of those testifying.
The consequence was an emerging practice of confrontation. Accordingly, in 1565
Sir Thomas Smith, Secretary of State to Queen Elizabeth, wrote a well-known
account of a typical English trial, which he vividly described as an 'altercation'
between the accused and accusing witne~ses.S~ir~ James Stephen QC has
remarked that Smith's description suggests that 'the common course was to call
witnesses face to face'.75
In trials for statutory treason the right of confrontation found recurrent support
in Acts of Parliament requiring witnesses to be 'brought forth in person' or
produced 'face to face' before the accused.76 The practice of confrontation is also
66 Lea. above n2 at 364.
67 O'Brien. above n39 at 19.
68 Id at 18.
69 Kamen, above n54 at 166.
70 Herrmann & Speer. above n23 at 522.
71 David M Walker, The Oxford Cornpanton to Laic, (1980) at 686-688. 1239.
72 Harold Potter. An lntrodirctron to the Hutor) ofEnglrsh La11( 2nd ed. 1926) at 95.
73 Wigmore, above 1112. 4 1364 at 12-15.
74 Thomas Smith, De Republrca Anglorum (1655) reprint by L Alston (1906) at 100.
75 James Fitzjames Stephen. A Hrstory ofthe Crrrntnal Law ofEngland (1883) vol 1 at 349.
76 5&6EdwVI,cll.$9(1552)1; &2Phil&M.clO,$11(1554);1 ElizI.c1.$21(1558):l Eliz
1. c5, $10 (1558): 13 Eliz l, cl. $9 (1570).
3 70 SYDNEY LAW REVIEW [VOL 24: 361
evidenced by Shakespeare's Richard I1 (c 1597), in which the King (at Act 1,
Scene I ) says:
Then call thcm to our presence; face to face.
And frowning brow to brow, ourselves will hear
The accuser and the accused freely speak.
By the end ofthe 16th Century the practice of permitting an accused to confront
his or her accusers in court was well established at common law and even held out
as a defining feature of the English system of criminal However, there were
two great exceptions to this practice: prosecutions before special courts that
adopted inquisitorial techniques, the most prominent of which was the Court of
Star Chamber, and common law trials for treason.
(i) Denials of Conjrontution in Political Trials
Fifteenth Century England was marked by civil war and public disorder.78
Corruption and witness intimidation had rendered trial by jury ineffe~tiveK.~in~g
Henry V11 sought to re-establish the rule of law by expanding the powers of his
royal council, which had sat as a court since the 14th Century in a room at
Westminster with a ceiling studded with stars and known as 'the sterred
chumber'.XOIn 1487, he passed the Pro Cameru Stellata (Star Chamber) ~ c t . ~ '
The 1487 Act gave the Star Chamber power to examine and punish offenders
as if they had been convicted through normal adversarial processes in a court of
common law. However, proceedings before the Star Chamber were inquisitorial
and commenced by one of two secretive methods.82 The first was known as ore
tenus (by the mouth) and 'often took plhce through secret information given to the
council and from which an accused could be taken before them'.83 Suspects were
privately examined, without oath, and if they refused to speak were imprisoned
until they decided otherwise. Those who confessed were taken into open court and
required to repeat their words, whereupon they were convicted ex ore suo (out of
their own mouth).
The second Star Chamber procedure was commenced 'by an information filed
by the Attorney-General against the defendant based on a charge laid before him
by persons whose identity might never be a'is~losed'T.~h~e accused was required
to answer the information in writing and then was examined under an ex oj3cio
77 Case qf /he Unron of /he Reulms ( 1604) 72 ER 908 at 913 (Popham CJ).
78 Radclill'e & Cross. 7he Englrsh f.egal.~vstem (5th ed, 197 1 ) at 100-102.
79 Stephen. abovc n75 at 171. Also see Alhert 'I homas Carter, A tlrs/or-).of/he Englrsh ('our/s (6th
cd, 1935) at 79-80.
80 Peter N Walker, 7'he ('our/s q/Law ( 1970) at 179, Goldw~nS mith, /1 Cons/rru/ronala nd Legal
I/r.s/oryo f Eri~gland( 1990) at 257.
8 1 3 I len V11, c l. The words 'pro carnew .stellalu'. appended to the Act as a marginal title, were
added after 1487.
82 Stephen. above 1175 at 177,337; W S Holdsworth, Sotrr.ces and Lr/era/tn.eo fEnglrsh LUIV ( 1925)
at 168, 171-174.
83 Walker, above n80 at 180.
81 Radclilt'e & Cross, abovc n78 at l07 (emphasis added). Also see Stephen, abovc n75 at 343.