Fair Trial – A common law right
The right to a fair trial has been described as ‘a central pillar of our criminal justice system’, ‘fundamental and absolute’ and a ‘cardinal requirement of the rule of law’.
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’.
Fairness also gives a trial its integrity and moral legitimacy or authority.
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.
The right to a fair trial is ‘manifested in rules of law and of practice designed to regulate the course of the trial’.
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’.
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.
The right to a fair trial ‘extends to the whole course of the criminal process’.
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’.
Attributes of a fair trial
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;
- the court must be ‘competent, independent and impartial’;
- 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’;
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.
Application for a change in venue to an impartial and non-corrupt court house with a non-corrupt Registrar and Magistrates: