Elements of a Fair Trial

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This article is a topic within the subject Crime & the Criminal Process.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 255-256; 262; 271-277..


[1] The concept of a fair trial is linked with concepts of due process, the rule of law, the presumption of innocence and so on. However, there is an absence of a bill of rights in Australia, and thus rights are found in a range of judicial, statutory, constitutional and international sources.

  • International law in the form of treaty obligations can have indirect effects, such assisting in interpretation of a statute where there is ambiguity.
  • There has been a reading of implied rights in the Constitution, but there are limits to this such as conceptions of the role of judges and the lack of concern regarding rights by the drafters.
  • There are few explicit rights in the Constitution, including the right to trial by jury for Commonwealth offences.[2]

The Constitutional Status of Jury Trial

[3] The most relevant provision in the Constitution for the criminal law is s 80, which provides that ‘the trial on indictment of any offence against any law of the Commonwealth shall be by jury’. This section has caused a lot of debate, usually phrased around what exactly are the essential elements of a jury trial.

  • For example, a debate occurred regarding whether jury vetting was consistent with s 80 (discussed in Katsunu).[4]

Legal Representation and Fair Trials

[5] Another issue of debate is whether the absence of legal representation jeopardises a fair trial. This concept was first discussed in McInnis:[6]

  • Facts: McInnis lodged a late application to have legal representation, which was then denied. Other applications to adjourn the court whilst he seeks representation were also denied.
  • Held: The High Court held that no miscarriage of justice was done simply because McInnis had no legal representation. However, it should be mentioned that the court paid attention to the fact the defence was competently constructed by Mcinnis anyway, and the amount of evidence against him was overwhelming, so it's doubtful what more a lawyer could have done.

The issue came up again in the prolific case Dietrich:[7]

  • Facts: the defendant was convicted on drug trafficking charges. Legal representation would only be provided to the defendant if he entered guilty, and he did not want to do so. He ended up with no representation and after being convicted, appealed to the High Court that the refusal to provide him with legal aid constituted a miscarriage of justice.
  • Held: the deprivation of legal aid constituted a miscarriage of justice.
    • The right to a fair trial comes from two different places: the common law and the Constitution.
    • The significance of the difference is that common law can be overridden by statute, whilst constitutional powers and rights cannot even be removed through the legislation of Commonwealth Parliament.

Some argue that a common law ‘principle’ of a fair trial is preferable over a constitutional right, given economic considerations in the function of the criminal justice system.

Remand Conditions

[8] Within the right to a fair trial, a person also has the right to adequate remand conditions (remand - in detention pending trial, where bail has not been granted).

This issue came up in Benbrika (Ruling No 20) (note: Victorian case):[9]

  • Facts: defendants who were charged for terrorism were on remand under very poor conditions. They applied to the court to have the trial stayed until their conditions are improved.
  • Held: remand conditions may breach the right to a fair trial, and that in such circumstances a court may order a stay in proceedings.
    • A court has the ability to stay proceedings if the trial is becoming unfair. This is due to the inherent abuse of process or unfair process. This stay may be temporary or permanent.
    • In this case, the remand conditions were such that are likely to adversely affect the defendants to the degree that the trial is becoming unfair.
    • The unfairness may be removed by improving certain remand conditions etc., which would then allow the proceedings to continue (several minimum changes were given by the court).
    • The court was adjourned to a later date, with the warning that if conditions are not improved by that date, the trial will be stayed indefinitely and the court will review bail applications (ie, will allow the defendants bail). The conditions were improved the and trial continued.


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Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 255-6.
  2. The Constitution, s 80.
  3. Textbook, pp. 256-62.
  4. (1999) 199 CLR 40.
  5. Textbook, p. 262.
  6. (1979) 143 CLR 575.
  7. (1992) 177 CLR 292.
  8. Textbook, pp. 273-77.
  9. [2008] VSC 80.
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