10.17 Widely accepted general attributes of a fair trial—some traceable to the common law, others to important Parliamentary reforms—may now be found set out in international treaties, conventions, human rights statutes and bills of rights. As found in art 14 of the International Covenant on Civil and Political Rights (ICCPR), these include the following:
independent court: the court must be ‘competent, independent and impartial’;
public trial: the trial should be held in public and judgment given in public;
presumption of innocence:the defendant should be presumed innocent until proved guilty—the prosecution therefore bears the onus of proof and must prove guilt beyond reasonable doubt;
defendant told of charge:the defendant should be informed of the nature and cause of the charge against him—promptly, in detail, and in a language which he or she understands;
time and facilities to prepare:the defendant must have adequate time and facilities to prepare a defence and to communicate with counsel of his own choosing;
trial without undue delay: the defendant must be tried without undue delay—that is, undue delay between arrest and the trial, perhaps having regard to such things as the length of the delay, the reasons for the delay, and whether there was any prejudice to the accused;
right to a lawyer:the defendant must be ‘tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it’;
right to examine witnesses: the defendant must have the opportunity to ‘examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’;
right to an interpreter: the defendant is entitled to the ‘free assistance of an interpreter if he cannot understand or speak the language used in court’;
right not to testify against oneself: the defendant has a right ‘not to be compelled to testify against himself or to confess guilt’;
no double jeopardy: no one shall be ‘liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country’.
10.18 The elements of a fair trial appear to be related to the defining or essential characteristics of a court, which have been said to include: the reality and appearance of the court’s independence and its impartiality; the application of procedural fairness; adherence, as a general rule, to the open court principle; and that a court generally gives reasons for its decisions.
10.19 The attributes of a fair trial cannot, however, be conclusively and exhaustively defined. In Jago v District Court (NSW), Deane J said:
The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience.
10.20 In Dietrich v The Queen, Mason CJ and McHugh J said:
There has been no judicial attempt to list exhaustively the attributes of a fair trial. That is because, in the ordinary course of the criminal appellate process, an appellate court is generally called upon to determine, as here, whether something that was done or said in the course of the trial, or less usually before trial, resulted in the accused being deprived of a fair trial and led to a miscarriage of justice.
10.21 In this same case, Gaudron J said that what is fair ‘very often depends on the circumstances of the particular case’ and ‘notions of fairness are inevitably bound up with prevailing social values’:
It is because of these matters that the inherent powers of a court to prevent injustice are not confined within closed categories. And it is because of those same matters that, save where clear categories have emerged, the inquiry as to what is fair must be particular and individual.
10.22 Testing a given law against an accepted attribute of a fair trial may therefore be contrasted with an approach that focuses on whether, in a particular case, justice was done in practice. In a case concerning administrative law, but in terms said to have more general application, Gleeson CJ said:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
10.23 The plurality in Assistant Commissioner Michael James Condon v Pompano, which approved Gleeson CJ’s statement, said that the ‘rules of procedural fairness do not have immutably fixed content’. Gageler J said:
Suggestions that there are exceptions to procedural fairness in the common practices of courts in Australia are unfounded. The suggested exceptions are more apparent than real … All are examples of modifications or adjustments to ordinary procedures, invariably within an overall process that, viewed in its entirety, entails procedural fairness.
10.24 Evidently, considerable care must be taken in identifying laws that interfere with the right to a fair trial and, as discussed in Chapter 15, with procedural fairness in administrative decision making. Such laws must be understood in their broader context, and with a view to their practical application. It is unlikely that such laws can be subject to simple tests which will effortlessly reveal whether the law is justified or not.
10.25 Much might therefore depend on whether the court retains its discretion to ensure the trial is run fairly. Judges play the central role in ensuring the fairness of trials, and have inherent powers to ensure a trial is run fairly. In Dietrich v The Queen, Gaudron J said that the ‘requirement of fairness is not only independent, it is intrinsic and inherent’:
Every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in the trial. Of course, particular powers serving the same end may be conferred by statute or confirmed by rules of court.
10.26 In X7 v Australian Crime Commission, French CJ and Crennan J said:
The courts have long had inherent powers to ensure that court processes are not abused. Such powers exist to enable courts to ensure that their processes are not used in a manner giving rise to injustice, thereby safeguarding the administration of justice. The power to prevent an abuse of process is an incident of the general power to ensure fairness. A court’s equally ancient institutional power to punish for contempt, an attribute of judicial power provided for in Ch III of the Constitution, also enables it to control and supervise proceedings to prevent injustice, and includes a power to take appropriate action in respect of a contempt, or a threatened contempt, in relation to a fair trial.
10.27 In his submission, Professor Jeremy Gans stressed the importance of the inherent jurisdiction of any superior court to stay a proceeding on the ground of abuse of process: ‘in my view, a key criterion for determining whether a Commonwealth law limits the right to a fair trial is whether or not a court’s power to prevent an abuse of process is effective’.
10.28 For the purpose of this Inquiry, the ALRC has identified statutes that appear to depart from accepted attributes of a fair trial, even if such statutes—understood in their broader context and having regard to a court’s power to prevent unfairness—often may not, in practice, cause unfairness.
Eg, International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14 (discussed further below).
See Ch 11.
R v Morin (1992) 1 SCR 771.
See Ch 12. This list is drawn from the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14. See also Bingham, above n 3, Ch 9.
Wainohu v New South Wales (2011) 243 CLR 181,  (French CJ and Kiefel J) (citations omitted). Their honours went on to say: ‘Historically evolved as they are and requiring application in the real world, the defining characteristics of courts are not and cannot be absolutes. Decisional independence operates within the framework of the rule of law and not outside it. Procedural fairness, manifested in the requirements that the court be and appear to be impartial and that parties be heard by the court, is defined by practical judgments about its content and application which may vary according to the circumstances. Both the open court principle and the hearing rule may be qualified by public interest considerations such as the protection of sensitive information and the identities of vulnerable witnesses, including informants in criminal matters’.
James Spigelman has written that it is ‘not feasible to attempt to list exhaustively the attributes of a fair trial … The issue has arisen in a seemingly infinite variety of actual situations in the course of determining whether something that was done or said either before or at the time of the trial deprived the trial of the quality of fairness to a degree where a miscarriage of justice has occurred’: James Spigelman, ‘The Common Law Bill of Rights’ (2008) 3 Statutory Interpretation and Human Rights: McPherson Lecture Series 25.
Jago v The District Court of NSW (1989) 168 CLR 23, .
Dietrich v The Queen (1992) 177 CLR 292, 300.
Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1, . Cited with approval, and said to have more general application, in Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38,  (Hayne, Crennan, Kiefel and Bell JJ). Professors Dixon and Williams write that in this case, the Court endorsed ‘a largely practical concept of procedural fairness, rather than one informed by abstract notions of human rights’: Rosalind Dixon and George Williams, The High Court, the Constitution and Australian Politics (Cambridge University Press, 2015) 294.
Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38,  (Hayne, Crennan, Kiefel and Bell JJ).
Ibid  (Gageler J).
Dietrich v The Queen (1992) 177 CLR 292, 363–4 (Gaudron J).
X7 v Australian Crime Commission (2013) 248 CLR 92,  (French CJ and Crennan J) (citations omitted).
J Gans, Submission 2.