A common law right

10.1       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]

10.2       Fundamentally, a fair trial is designed to prevent innocent people being convicted of crimes. It protects liberty, property, reputation and other fundamental interests. Being wrongly convicted of a crime has been called a ‘deep injustice and a substantial moral harm’.[4] Fairness also gives a trial its integrity and moral legitimacy or authority.[5]

10.3       Furthermore, fair trials are presumably more likely to reach correct verdicts than unfair trials, and therefore they may not only help prevent wrongful convictions of the innocent, but also indirectly promote the prosecution and punishment of the guilty.

10.4       The right to a fair trial is ‘manifested in rules of law and of practice designed to regulate the course of the trial’.[6] Strictly speaking, it is ‘a right not to be tried unfairly’ or ‘an immunity against conviction otherwise than after a fair trial’, because ‘no person has the right to insist upon being prosecuted or tried by the State’.[7]

10.5       This chapter discusses the source and rationale of the right to a fair trial; how the right is protected from statutory encroachment; and when Commonwealth laws that limit accepted principles of a fair trial may be justified. It focuses on some widely recognised components of a fair trial that have been subject to statutory limits, for example:

  • a trial should be held in public and the court’s reasons for its decision should be delivered in public;

  • a defendant has a right to a lawyer; and

  • a defendant has the right to confront the prosecution’s witnesses and to test the evidence said to prove his or her guilt.

10.6       Other important components of a fair trial are discussed in separate chapters of this Interim Report: the burden of proof and the right to be presumed innocent;[8] the right not to incriminate oneself;[9] and the right to have one’s communications with one’s lawyer kept confidential.[10]

10.7       The right to a fair trial ‘extends to the whole course of the criminal process’.[11] It has been said that there is ‘no aspect of preparation for trial or of criminal procedure which is not touched by, or indeed determined by, the principle of a fair trial’.[12] However, given the practical scope of this Inquiry, this report does not seek to identify all Commonwealth laws that might affect the fairness of a trial, but rather highlights particular examples of laws that interfere with accepted principles of a fair trial.[13]

10.8       Further, because some state courts exercise federal jurisdiction and, by virtue of s 68 of the Judiciary Act 1903 (Cth) (Judiciary Act), the courts apply their own state procedures, a more thorough review of fair trial laws might need to consider all these state laws.

10.9       This chapter and the burden of proof chapter focus on criminal laws, although many of the principles will also be relevant to civil trials, which must of course also be fair, particularly considering the very serious consequences—including sometimes substantial legal costs and civil penalties—that may follow a civil trial.[14]

A traditional right?

10.10   Although a fair trial may now be called a traditional and fundamental right, clearly recognised under the common law, what amounts to a fair trial has changed over time. Many criminal trials of history would now seem strikingly unfair.

10.11   In X7 v Australian Crime Commission, Hayne and Bell JJ said that it was necessary to ‘exercise some care in identifying what lessons can be drawn from the history of the development of criminal law and procedure’. Even some fundamental features of the criminal trial process ‘are of relatively recent origin’:

So, for example, what now are axiomatic principles about the burden and standard of proof in criminal trials were not fully established until, in 1935, Woolmington v The Director of Public Prosecutions decided that ‘[t]hroughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt’. Any reference to the history of the privilege against self-incrimination, or its place in English criminal trial process, must also recognise that it was not until the last years of the nineteenth century that an accused person became a competent witness at his or her trial.[15]

10.12   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.[16]

10.13   Even later, when the importance of trial by jury for serious crimes was recognised, trials remained in many ways unfair. In his Introduction to English Legal History, Professor Sir JH 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.[17]

10.14   There was ‘little of the care and deliberation of a modern trial before the last century’, Baker writes:

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.[18]

10.15   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.[19]

10.16   The most important reforms, Baker writes, ‘were put off until the nineteenth century’. A person on trial for a felony was given the right to have a lawyer represent him in court in 1836; to call his own witnesses in 1867; and to give his own sworn evidence in 1898.[20]

[1]           Dietrich v The Queen (1992) 177 CLR 292, 298 (Mason CJ and McHugh J).

[2]           Brown v Stott [2003] 1 AC 681, 719.

[3]           Tom Bingham, The Rule of Law (Penguin UK, 2011) ch 9.

[4]           Andrew Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 International Journal of Evidence and Proof 241, 247. Ashworth goes on to say: ‘It is avoidance of this harm that underlies the universal insistence on respect for the right to a fair trial, and with it the presumption of innocence’: Ibid.

[5]           See Ian Dennis, The Law of Evidence (Sweet & Maxwell, 5th ed, 2013) 51–62.

[6]           Dietrich v The Queen (1992) 177 CLR 292, 299–300.

[7]           Jago v The District Court of NSW (1989) 168 CLR 23, 56–7 (Deane J).

[8]           See Ch 11.

[9]           See Ch 12.

[10]         See Ch 13.

[11]         X7 v Australian Crime Commission (2013) 248 CLR 92, [38] (French CJ and Crennan J) (citations omitted).

[12]         John Fairfax Publications Pty Ltd v Hitchcock (2004) 61 NSWLR 344, [22], [23] (Spigelman CJ, Handley JA and M W Campbell A-JA agreeing).

[13]         The laws of evidence, for example, perhaps relate to the fairness of trials. Evidence law was the subject of substantial ALRC inquiries in 1985–87 and 2006: See Australian Law Reform Commission, Interim Report, Evidence, ALRC Report 26 (1985); Australian Law Reform Commission, Evidence, ALRC Report 38 (1987); Australian Law Reform Commission; New South Wales Law Reform Commission; Victorian Law Reform Commission, Uniform Evidence Law, ALRC Report No 102 (2006).

[14]         The Terms of Reference refer to laws that ‘alter criminal law practices based on the principle of a fair trial’ (emphasis added).

[15]         X7 v Australian Crime Commission (2013) 248 CLR 92, [100].

[16]         Cosmas Moisidis, Criminal Discovery: From Truth to Proof and Back Again (Institute of Criminology Press, 2008) 5.

[17]         JH Baker, An Introduction to English Legal History (Butterworths, 1971) 417. ‘So the prosecutor could tell the jury why the defendant was guilty, but there was no advocate to say why he was not’: Bingham, above n 3. ‘Until the late 18th century, it was typical for defendants in criminal trial to respond in person to all accusations’: Moisidis, above n 16, 10.

[18]         Baker, above n 17, 417.

[19]         Ibid.

[20]         Ibid 418. These reforms were made by Acts of Parliament.