A common law right

8.1          The right to a fair trial has been described as ‘a central pillar of our criminal justice system’,[1] ‘fundamental and absolute’,[2] and a ‘cardinal requirement of the rule of law’[3].

8.2          Fundamentally, a fair trial is designed to prevent innocent people being convicted of crimes. It protects people’s life, liberty and reputation. Being wrongly convicted of a crime has been called a ‘deep injustice and a substantial moral harm’.[4] By helping prevent the punishment of the innocent, fair trials also promote the prosecution and punishment of the guilty.[5]

8.3          This chapter discusses the source and rationale of the right to a fair trial; how the right is protected from statutory encroachment; and when, if ever, laws that encroach on the right may be justified. The ALRC calls for submissions on two questions about this right.

Question 8–1              What general principles or criteria should be applied to help determine whether a law that limits the right to a fair trial is justified?

Question 8–2              Which Commonwealth laws unjustifiably limit the right to a fair trial, and why are these laws unjustified?

8.4          The High Court of Australia has said that a right to a fair trial is ‘commonly manifested in rules of law and of practice designed to regulate the course of the trial’.[6]

8.5          Many attributes of a fair trial are now set out in international treaties, conventions, human rights statutes and bills of rights,[7] but many of these attributes have their roots in older statutes and the common law.

8.6          Although a fair trial may now be called a traditional and fundamental right, what amounts to a fair trial has changed over time. Many criminal trials of history would now seem strikingly unfair. In his book, Criminal Discovery: From Truth to Proof and Back Again, Dr Cosmas Moisidis writes:

The earliest forms of English criminal trials involved no conception of truth seeking which would be regarded as rational or scientific by modern standards. The conviction of the guilty and the acquittal of the innocent were to be achieved by means which appealed to God to work a miracle and thereby demonstrate the guilt or innocence of the accused. No consideration was given as to whether an accused should be a testimonial resource or be able to enjoy a right to silence and put the prosecution to its proof. Instead, guilt and innocence were considered to be discoverable by methods such as trial by compurgation, trial by battle and trial by ordeal.[8]

8.7          Even later, trials by jury—an important element of a fair trial—remained in many ways unfair. In his Introduction to English Legal History, J H Baker wrote that for some time the accused remained ‘at a considerable disadvantage compared with the prosecution’:

His right to call witnesses was doubted, and when it was allowed the witnesses were not sworn. The process for compelling the attendance of witnesses for the prosecution, by taking recognisances, was not available to the defendant. The defendant could not have the assistance of counsel in presenting his case, unless there was a point of law arising on the indictment; since the point of law had to be assigned before counsel was allowed, the unlearned defendant had little chance of professional help.  … The same jurors might have to try several cases, and keep their conclusions in their heads, before giving in their verdicts; and it was commonplace for a number of capital cases to be disposed of in a single sitting. Hearsay evidence was often admitted; indeed, there were few if any rules of evidence before the eighteenth century.[9]

8.8          Baker describes the ‘unseemly hurry of Old Bailey trials in the early nineteenth century’ and calls it ‘disgraceful’:

the average length of a trial was a few minutes, and ‘full two thirds of the prisoners, on their return from their trials, cannot tell of any thing which has passed in court, nor even, very frequently, whether they have been tried’. It is impossible to estimate how far these convictions led to wrong convictions, but the plight of the uneducated and unbefriended prisoner was a sad one.[10]

8.9          The most important reforms, Baker writes, ‘were put off until the nineteenth century’:

In 1836 prisoners on trial for felony were at last given the right to ‘make full answer and defence thereto by counsel learned in the law’. In 1867 they were given facilities, comparable to those of the prosecution, for calling witnesses to depose evidence before the trial and having such witnesses bound over to attend the trial. And in 1898 prisoners were accorded the dangerous privilege of giving sworn evidence themselves.[11]