Fair Trial
Is it part of the concept of a fair trial that, if an accused cannot afford legal representation, the state must provide it?
INTRODUCTION
‘When a person is faced with deprivation of liberty, the most stringiest standards must be followed to ensure that the person is properly subject to that restriction.’ The notion of obtaining a fair trial has long been questioned as far back in the time of trial of King Charles I of England in 1649. His highness insisted upon his conception of the rule of law and his basic English liberties to attain a fair trial. Hundreds of years followed, Dietrich v The Queen (‘Dietrich’) had ultimately brought light to implications of fairness and legal aid policies to Australia, particularly in Victoria. Right to a fair trial is one of the most extensive human rights that exist that has been stressed by the High court in Dietrich. One virtue of a fair trial, that this paper will aim to observe, is the right to a legal representation.
Dietrich, a critical turning point
The courts have been unwilling to endorse the idea of access to a legal representation to achieve a fair trial. However the authority from Dietrich has meant many changes on the procedural front. Dietrich laid the ground for the significance of right to a fair trial. The accused was charged in the County Court of Victoria in 1988 on four accounts which he had all pleaded not guilty. He had applied for a legal aid to the Legal Aid Commission of Victoria for assistance but was rejected and will only be provided for a plea of guilty. He then sought to appeal to the High Court of Australia for a miscarriage of justice as he was not legally represented. It was determined by the High Court that a person charged with a criminal offence has no absolute and enforceable ‘right’ to legal representation. But as per Mason CJ and McHugh J, where a person charged with a serious criminal offence who, through no fault on his or her part is unable to obtain legal representation, any
INTRODUCTION
‘When a person is faced with deprivation of liberty, the most stringiest standards must be followed to ensure that the person is properly subject to that restriction.’ The notion of obtaining a fair trial has long been questioned as far back in the time of trial of King Charles I of England in 1649. His highness insisted upon his conception of the rule of law and his basic English liberties to attain a fair trial. Hundreds of years followed, Dietrich v The Queen (‘Dietrich’) had ultimately brought light to implications of fairness and legal aid policies to Australia, particularly in Victoria. Right to a fair trial is one of the most extensive human rights that exist that has been stressed by the High court in Dietrich. One virtue of a fair trial, that this paper will aim to observe, is the right to a legal representation.
Dietrich, a critical turning point
The courts have been unwilling to endorse the idea of access to a legal representation to achieve a fair trial. However the authority from Dietrich has meant many changes on the procedural front. Dietrich laid the ground for the significance of right to a fair trial. The accused was charged in the County Court of Victoria in 1988 on four accounts which he had all pleaded not guilty. He had applied for a legal aid to the Legal Aid Commission of Victoria for assistance but was rejected and will only be provided for a plea of guilty. He then sought to appeal to the High Court of Australia for a miscarriage of justice as he was not legally represented. It was determined by the High Court that a person charged with a criminal offence has no absolute and enforceable ‘right’ to legal representation. But as per Mason CJ and McHugh J, where a person charged with a serious criminal offence who, through no fault on his or her part is unable to obtain legal representation, any
Bibliography: Journals Fairall, P (1992) ‘Trial Without Counsel: Dietrich v the Queen’ (1992) 4(2) Bond Law Review 8 Books Andrew Stumer, The Presumption of Innocence: Evidential and Human Rights Perspectives (Hart Publishing, 2010). Charles Cato, The Law and Practice of Criminal Litigation (LBC Information Services, 1998). Christopher Corns and Steven Tudor, Criminal Investigation and Procedure: The Law in Victoria (Thomson Reuters, 2009). Kenneth Arenson, Mirko Bagaric and Luke Neal, Criminal Processes and Investigative Procedures: Victoria and Commonwealth (LexisNexix Butterworths, 2010). Mark Findley, Stephen Odgers and Stanley Yeo, Australian Criminal Justice (Oxford University Press, 3rd ed, 2005). Richard Fox, Victorian Criminal Procedure 1988 (National Library of Australia, 6th ed, 1988). Richard Fox, Victorian Criminal Procedure: State and Federal Law 1995 (National Library of Australia, 8th ed, 1995). Richard Fox, Victorian Criminal Procedure 2005 (National Library of Australia, 12th ed, 2005). Cases Dietrich v The Queen (1992) 177 CLR 292. Jago v District Court of New South Wales (1989) 168 CLR 23. Mclnnis v The Queen (1979) 143 CLR 575. New South Wales v Cannellis (1994) 181 CLR 309. [ 1 ]. Andrew Stumer, The Presumption of Innocence: Evidential and Human Rights to Perspectives (Hart Publishing, 2010) 44. [ 2 ]. Dietrich v The Queen (1992) 177 CLR 292. [ 3 ]. Mclnnis v The Q.ueen (1979) 143 CLR 575. [ 6 ]. Christopher Corns and Steven Tudor, Criminal Investigation and Procedure: The Law in Victoria (Thomson Reuters, 2009) [ 7 ] [ 8 ]. Jago v District Court of New South Wales (1989) 168 CLR 23, per Deane J at 56. [ 11 ]. Christopher Corns and Steven Tudor, Criminal Investigation and Procedure: The Law in Victoria (Thomson Reuters, 2009). [ 13 ]. R Dworkin, Taking Rights Seriously (Duckworth, 1977) 200, cited in Andrew Stumer, The Presumption of Innocence: Evidential and Human Rights to Perspectives (Hart Publishing, 2010) 42. [ 14 ]. Richard Fox, Victorian Criminal Procedure 2005 (National Library of Australia, 12th ed, 2005). [ 15 ]. Dietrich v The Queen (1992) 177 CLR 292, 7. [ 17 ]. Richard Fox, Victorian Criminal Procedure 1988 (National Library of Australia, 6th ed, 1988). [ 19 ]. Richard Fox, Victorian Criminal Procedure 1988 (National Library of Australia, 6th ed, 1988). [ 20 ]. Mark Findley, Stephen Odgers and Stanley Yeo, Australian Criminal Justice (Oxford University Press, 3rd ed, 2005). [ 21 ]. McInnes v The Queen (1979) 143 CLR 575 at 590.