Australian right to a fair trial

This is not a column defending Mr Gargasoulas. This is not how the law was intended to work and should never work. This is standard in many bail applications. It remains to be seen what will become of Mr Gargasoulas. And anyone found guilty of such crimes should spend the rest of their life in prison.

Treatment of the Bourke St tragedy also raises questions about media ethics. While tragic, the case is a timely reminder of the power of the media. The Court held further that the test for the appropriate remedy for a breach of the right to a trial without unreasonable delay is one of proportionality.

That is: 1 whether any proposed hearing would be unfair; and 2 whether there would be any relevant prejudice suffered by the appellant.

While the right to disclosure of relevant evidence is not an absolute right, and may be balanced against competing interests such as national security or the need to protect witnesses, the rights of the accused in the present case prevailed.

The Court decided that the police officer had to produce the evidence requested by the defendant to ensure a fair trial. The actions of public authorities can both promote and limit rights. Section 21 could be engaged by activities that:. Print this page. We acknowledge Aboriginal and Torres Strait Islander peoples as First Australians and recognise their culture, history, diversity and their deep connection to the land. Right to Fair Trial Section 21 of the Human Rights Act says that: Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Open justice requires people to be informed of the reasons for their arrest and any pre-trial detention to safeguard liberty. They must also be given information on their rights as a suspect. Without this information, conveyed in a language the person understands, rights that exist in law are illusory in practice. People should be told what they are being prosecuted for and shown the evidence against them, in a language they understand.

Without this information, a person will not have a fair chance to present a defence , for example by gathering evidence to counter claims made against them or providing alibi evidence.

The right to a fair trial also requires that people charged with offences be allowed to attend court and to participate effectively in the trial. This enables the court to interact with them and allows the person to hear and respond to the prosecution case. Defendants are entitled to give evidence and, except in exceptional cases, are also entitled to call witnesses and cross-examine prosecution witnesses.

A person charged with a criminal offence faces the overwhelming power of the state. The right to a fair trial therefore requires that the defendant be given a fair chance to present a defence in order to counteract this imbalance.

Access to a lawyer is crucial to this and this right starts from the point of arrest and through the trial itself. People need access to legal advice so that they can understand the case against them.

If a defendant has the means to pay, they should be able to choose their own lawyer. If the person cannot afford to pay for their own lawyer, where the interests of justice require, the state should provide free legal assistance.

A person facing criminal charges must have the time and facilities to prepare a defence. This right exists at all stages of the proceedings and encompasses the right to documents, files, and information as well as a guarantee of confidential communication with counsel see Open Justice.

Although undue delays in criminal proceedings often contradict the right to a fair trial , fast-track trials can also deny people a fair chance to present a defence. Crucially, during the trial itself people must have a fair chance to present a defence under conditions that do not place them at a disadvantage versus their opponent.

This will require the free assistance of an interpreter if the person cannot understand or speak the language used in court. The person should be allowed to be present at hearings which is also crucial to open justice and should be given the chance to make a statement. Except in exceptional circumstances, people must also be given the right to call witnesses and examine or have examined witnesses in the same manner as the prosecution. Who we are. Building a movement.

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