What Constitutes Fair Trial in Australia - Case Study Example

AUSTRALIAN CONSTITTIONAL LAW: RIGHT TO A FAIR TRIAL Customer’s Name Customer’s Grade Course Customer tutor’s Name 25th August, 2011 INTRODUCTION: WHAT CONSTITUTES FAIR TRIAL IN AUSTRALIA The right to fair trial is a core element in the concept of the rule of law, as well as for the protection of human rights. Existence of laws which protect human rights, are meaningless without their effective enforcement1. The right to a fair trial therefore protects human beings against violation of other basic rights2. The right to a fair trial is a compound right, made up of many separate related requirements, such as the right to be presumed innocent till proven guilty, the right to be tried without undue delay,, the right to be given time to prepare for a defense, the right to be able to defend yourself in person or by services of a counsel, the right to call & examine witnesses and the right to protection from retroactive criminal laws. A complete definition of the right is therefore elusive as each component of the right is subject to some limitations of interpretation and balance against compelling public, state or individual interests. However deficits in one of the component pert of the right can in some extent are compensated for by rigorous respect for the others. The constitutional principle of due process in Australia remains relatively undeveloped and fairly limited in its scope. The high court, developing the common law, has provided a general solution to protect the right to fair trial3. This line of authority has been formulated on the inherent jurisdiction of the superior courts to stay legal proceedings on the ground that they constitute an abuse of the judicial process. The high court in Australia has held that trial judges have the powers not to start proceedings where they feel that the procedure can be influenced by malice and abuse of due process. The high court also held that the right the right to a fair trial may be compromised by excessive delay in bringing criminal charges before the court, and by a trial judge’s refusal to stay proceedings until an unrepresented accused person obtains legal representation. The constitutional entrenchment of legal process rights such as the right to a fair trial recognized in the Dietrich as a core part of the judicial power of the Commonwealth constitution conferred by chapter III of the constitution is aimed at immunizing judicial proceedings from legislative interference and is a major means of protecting common law rights in Australia4. Indeed, Deane J considered the separation of judicial power to be the most important constitution guarantee of rights and immunity5. ASSESING IF IN LIGHT OF THE QUOTE OF GAUDRON J, THE EXERCISE OF JUDICIAL POWER IS PRACTICED IN ACCORDANCE WITH THE JUDICIAL PROCESS OF GUARANTEED RIGHT OF A FAIR TRIAL UNDER THE COMMONWEALTH CONSTITUTION For sure the most distinct statement on the potential conflict between the principles of legality and fairness was offered by the Gaudron J in Dietrich, who suggested that the notion of fairness be integrated in the due process and was autonomous from the requirements that a court case be done in accordance with the law: “The law recognizes that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law and so the qualification and global criteria of fairness!”6 The above views were not endorsed by other members of the court and so they are strictly obiter; the applicant based his appeal on the common law, abandoning earlier arguments based on fair trial implications drawn from the constitution Act 1975 (Vic). While the above statement was made in light of a discussion of the guarantee of due process implied from chapter three of the constitution, it therefore could be interpreted as having a strong impact to the common law driving abuse of process.7 Following Kable V DPP (1996) 138 ALR 577, the intention of the constitutional due process has been widened to be used by the State as well the Federal Courts. The high court decided that, since the State law courts are mandated by the Federal jurisdiction, they may not act in a way contrary to chapter three of the constitution8. The development of the “common law” rights to a fair trial by the Australian courts over the last past years gives the increasing influence of global human rights laws. The idea of a fair trial as a distinct right protected by the common law first emerged in Jago v District Court of New South Wales9. In this case, the high court considered whether undue pre-trial delay violated the accused rights to a fair trial resulting in a malpractice of justice. Although the high court made no reference to the constituent or components of right to a fair trial stipulated by the common law and by Gaudron quote. Kirby P in the New South Wales Court of criminal Appeal below expressly refereed to Australia’s obligation under art 14(3)(c) to guarantee trial “without due delay”10. 3 years later, in Dietrich v the Queen,11 the high court reconsidered the right to a fair trial in the context of an indigent accused who had been tried and convicted of a serious drug offence without legal representation. By contrast with Jago, the ruling in Dietrich are peppered with references to the fair trial guarantees in the doctrines of a fair trial12 The majority held that, although there is no right to legal representation at public expense, compelling and indigent accused to face serious criminal charges without legal representation could result in unfair trial. In Jago and Dietrich the high court objectively expanded the idea of the fair trial under the common law. Fairness in law court proceedings is no longer simply an aspirational value of the criminal justice system; rather it is a legally enforceable right which imposes upon the courts a duty to stay legal proceedings which are unfair.13 In deed, the availability of a prophylactic remedy for procedural unfairness revolutionized priorities and policies of Legal Aid Commission around Australia. In addition to its practical impact the decision in Dietrich signified a new “transitional approach” to legal adjudication. Procedural fairness underlies many common law rules, such as the presumption of innocence and the right to silence, the high court in Jago and Dietrich went one step further by identifying an umbrella concept, which, in the words of Mason CJ in Jago, underpinned “the whole course of the criminal process”.14 However, the precise limits of the idea of fair trial concept are still illusive and there are indications that the high court is taking on very little effort in restricting the concept to the criminal judicial processes. As Ashworth indicated, “since the court hearing is just but one stage in the criminal process, and since most of the hearings involves a confession of guiltiness and not a trial, this notion of fairness should surely be integrated in other decisions taken before any case that comes before the court”.15 “In Australia, the evidence of guilt procured by the illegal or improper police is not an abuse of the individual right, although such evidence may be excluded, at the discretion of the judge, on the grounds of public policy”.16 The judicial mandate to grant a stay of proceedings in order to prevent an unfair judicial process is described as part of the inherent jurisdiction to prevent an abuse of the process.17 The details of this jurisdictions as “inherent” indicates that it is autonomous idea which cannot be fettered by the legislature or the executive- it is therefore upon the judiciary to determine the specific attributes of a fair trial and when its proceedings are being challenged for an improper purpose.18 “The judicial courts can not consider for an instant to decide to hand over to Executive the core responsibility of enabling the due processes of law not to be abused”.19 However, the prospects of the common law solution for preventing an abuse of the judicial process is a contrary intention of the parliament and raises implications for the doctrine of parliamentary supremacy. There is however preliminary indications that the high court in Australia will not sanction the use of the stay in cases where the source of the unfairness is derived from the operation of a validly enacted statute. In Grills and PJE v R, the high court had to dismiss the accused’s requests for special leave to appeal; this therefore sends the message that the supreme court of New South Wales cannot stay a trial on the platform that a statute enacted by the legislature caused unfairness to the accused. This restriction on the abuse of the process doctrine is related to the dominance of Brennan CJ and his reluctance, evidence, evidenced in his earlier dissenting judgment in Dietrich, to sanction judicial interference in areas of the criminal justice system which are in his view properly the duty of the legislature or the executive.20 The alternative conception of the abuse of process doctrine, namely that the inherent jurisdiction to prevent an unfair trail can not be abrogated or fettered by the statute, may be bolstered by the implication drawn from the common wealth and state constitutions which envisage a separation of judicial from legislative and executive powers.21 Fair trial jurisprudence is in a nascent state of development in Australia and the far to which it drives a remedy where unfairness obtained from laws enacted by the legislature or the policies of the executive has not been determined. In Dietrich, the high court accepted that the right to a fair trial is an evolving idea incapable of completely being defined.22 Legal practitioners should draw upon the minimum guarantees stipulated in art 14(3) and rich jurisprudence.23 The practice of a fair trial in judicial processes in Australia is yet to be given due importance. There have been several domestic strategies that challenge the legal rules and practices in Australia which do not conform to the doctrine of fair trial guarantees laid forth. a) THE RIGHT TO SILENCE One of the common incidences of violation of the practice of fair trial in Australia is that of the accused being denied the right to silence. This right indicates that, “The accused has the right to be compelled to testify against him or her self or to confess guilt”. The intentions of this right are to cover the individuals who have been arrested by the police and who have been accused. Having the right to silence before and during the trial shows the importance that the common law gives against self incrimination that is; “no person is bound to accuse himself or herself”. The characterization of the privilege as a human right underlies the high court’s not accepting to extend the protection to artificial legal persons such as organizations.24 The right to silence stipulates that, “a person is not under a duty to answer questions or otherwise cooperate with the police or the prosecution during criminal investigation and that, accordingly, the trial judge and the prosecution are not permitted to suggest that the accused silence before trial can provide a basis for inferring consciousness of guilt or offering that the defense raised at the trial is a recent invention, or is otherwise suspect because the accused failed to mention it.”25 In Australia, the statutory and common law qualifications to the right to silence does not adequately safeguard the suspect’s interests. The customary caution offered before official questioning does not advise suspects that their failure to answer questions in certain circumstances such as not disclosing an alibi during questioning can result to adverse inferences drawn against the suspects in subsequent proceedings.26 “The customary Australian caution has been described as a misleading entrapment for the innocent accused that takes it on face value and does not provide an early explanation”.27 Suspects are usually susceptible to psychological pressure in Australia because the police usually are not required to tape record interviews or to facilitate access to legal representation during official questioning28. As a result of this fact, the susceptibility and isolation exposed to the suspects under investigation may significantly undermine the forensic value and fairness of drawing adverse inferences from their decisions to remain silent.29 The high court has consistently claimed that the use of deception or tricks during the investigation process is unfair.30 For sure the trends towards covert police procedures is quit evident in the recent past where cases of police equipping undercover officers or informers with recording equipments for the purpose of capturing incriminating statements from the suspects to be used at trial. It is indeed hoped that references can be made to the emerging international jurisprudence on the privilege against self-incrimination can impact on the level of protection offered to individuals both before and during the trial process. b) DISCLOSURE OF PROSECUTION PROCEEDINGS The right to a fair trial does not allow the prosecution to disclose materials under its custody which is favourable to the accused. The right to a fair trial however, protects the rights of the accused to access necessary time and facilities in preparation for defense. “Facilities” has also been extended to mean the necessary documents for the defense.31 The common law dealing with disclosure in Australia is quit undeveloped.32 The magnitude of prosecution disclosure needed is dependent on reference to the right of the accused not to be subjected to an unfair trial. The mandate of the disclosure on the prosecution has been tagged to the trial itself and doesn’t extend to the committal or pre-trial hearings.33 The prosecution is under no obligation to reveal material which is irrelevant or relevant because of public interest.34 There is a potential danger that a suspect can be exposed to if the suspect if information is not disclosed to him or her. Public interest immunity cannot attach to materials which are relevant to the accused individual’s defense.35 Balancing of public interest and adjudication of public interest immunity claims is impossible where disclosure of material is prohibited by the law. In practice, the limited disclosure obligations under the common law are interfered by ethical and professional duties. To ameliorate the risk of injustice to the accused, prosecution guidelines have been formulated which clarify the way disclosure of unused materials to defense can be done. However, the protection of human rights, such as the fair trial, needs not to rest on non influential guidelines. Breach of these guidelines can lead to judicial or professional reprimand; the trial judge can’t stay the judicial proceedings unless the defense can find out the unfairness likely to have been caused by non-disclosure constitutes an abuse of the process. The lack of certainty on pre-trial disclosure to the defense in Australia therefore requires urgent attention. c) THE RULE AGAINST HEARSAY The main reason why here says can not be factored in a court case is because the person making the statement is not available in the court for cross examination, it can not be easily tested for truthfulness.36 However the high court in Australia adopted a “common sense” approach to judging whether a here say statement should be admitted as evidence based on whether the statement in the particular case is “sufficiently reliable and free from the risk of concoction to render it appropriate for consideration”.37 Allowing here says to be used in court proceedings in Australian judicial courts is a violation of the spirit of fair trial. CONCLUSION In absence of parliamentary clarification, and Judicial role in further developing the common law that protects the right to fair trial in Australia, it can then be appropriate to consider the international jurisprudence on the right to fair trial and its implications for the duties of protection the right to fair trial of the accused. BIBLIOGRAPHY Article Books/ Reports Graycar Adam and Grabosky N. Peter The Cambridge handbook of Australian criminology, Cambridge University Press, 2002. Ashworth, A. “Concept of criminal justice” (1979) Criminal Law review 412 at 414, fn 6. (1996) Public Law Review, 20. Charles J. G. Sampford, Interpreting constitutions: theories, principles and institutions Federation Press, 1996. Collins, B, “Will Hearsay stand the test of time?” (1994) 68 (4) Law institute journal 266 at 267. David Kinley, Human rights in Australian law: principles, practice and potential, Federation Press, 1998. Duggan, P. “Reforms of the criminal law with fair trial as the Guiding star” (1995) 19 Criminal Law Journal 258 at 271. Hunter, J and Cronin, K. Evidence, advocacy and Ethical Practice, Butterworths, Sydney, 1995. Jean Laborde A fair trial, Doubleday, 1962. Lingertwood, A. Australian evidence Butterworths, Sydney, 1993. Morgan, D and Stephenson, G. Suspicion and Silence: The Right to Silence in Criminal Investigations Blackstone Press, London, 1994. Chaaya, M. “The right to silence Reignited: Vulnerable Suspects, Police questioning and Law and order in New South Wales” (1998) 22 Criminal Law Journal, 82. Noor Muhammad, H, “Due Process of Law for the Persons accused of Crime” in Henkin, L (ed), The international Bill of Rights: the Covenant and Political rights (Colombia University Press, New York, 1981) 152. 1. Case Law Barton v The Queen (1980) 147 CLR 75 at 95-96. Dietrich v the Queen (1992) 177 CLR 292 at 300 per Mason CJ and McHugh J, at 353 per Toohey J. Environmental protection authority v Caltex (1993) 178 CLR 477 at 497-500 per Mason CJ and Toohey J. Jago v District Court of New South Wales (1988) 12 NSWLR558 at 569 per Kirby P. Jago v District Court of New South Wales (1989) 168 CLR 23 at 29. Kable v DPP (New South Wales) (1996) 138 ALR 577. McKinney v The Queen (1991) 171 CLR 468; Evidence act 1995 (Cth/ New South Wales) s 165(1) (f). Petty v The Queen (1991) 173 CLR 95 at 99. R v Saleam (1989) 16 New South Wales LR 14; Sobh (1993) 65 A Crim R 466. R v Seaboyer; R v Gayne (1991) 2 SCR 577 at 607 per McLachlin J. Ridgeway v The Queen (1995) 129 ALR 41 at 53 per Mason CJ. Teper v R (1952) AC 480 at 486 per Lord Normand. William v Spautz (1992) 107 ALR 635. 2. Legislation Evidence Act 1995 (New South Wales/ Cth) s 130. Read More