Is it part of the concept of a fair trial that, if an accused cannot afford legal representation, the state must provide it?
‘When a person is faced with deprivation of liberty, the most stringiest standards must be followed to ensure that the person is properly subject to that restriction.’ The notion of obtaining a fair trial has long been questioned as far back in the time of trial of King Charles I of England in 1649. His highness insisted upon his conception of the rule of law and his basic English liberties to attain a fair trial. Hundreds of years followed, Dietrich v The Queen (‘Dietrich’) had ultimately brought light to implications of fairness and legal aid policies to Australia, particularly in Victoria. Right to a fair trial is one of the most extensive human rights that exist that has been stressed by the High court in Dietrich. One virtue of a fair trial, that this paper will aim to observe, is the right to a legal representation.
Dietrich, a critical turning point
The courts have been unwilling to endorse the idea of access to a legal representation to achieve a fair trial. However the authority from Dietrich has meant many changes on the procedural front. Dietrich laid the ground for the significance of right to a fair trial. The accused was charged in the County Court of Victoria in 1988 on four accounts which he had all pleaded not guilty. He had applied for a legal aid to the Legal Aid Commission of Victoria for assistance but was rejected and will only be provided for a plea of guilty. He then sought to appeal to the High Court of Australia for a miscarriage of justice as he was not legally represented. It was determined by the High Court that a person charged with a criminal offence has no absolute and enforceable ‘right’ to legal representation. But as per Mason CJ and McHugh J, where a person charged with a serious criminal offence who, through no fault on his or her part is unable to obtain legal representation, any application of an adjournment or stay be granted (unless presence of exceptional circumstances) until legal representation is made available. However, where the trial in fact proceeds to conviction given such circumstances, the trail is deemed unfair and conviction must be overturned.
Right to a fair trial
Criminal trials are statistically the medium of resolving criminal allegations. However, it needs to conform around fundamental rights and principles to achieve a fair trial. It has long been an ‘arena in which fundamental rights have a significant role to play.’ Fair trial is a court hearing which is procedurally just to both parties. The right not to be tried unfairly is a fundamental element of the criminal justice system. It attributes the right of the defendant, to know the charges, to present evidence, to cross –examine witnesses and to be legally represented, which is the mostly violated element. A trial that is deemed unfair is likely to be restarted or its verdict voided. In Victoria, the right to a fair trial is manifested under the section 24 – 27 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The right to a fair trial is also central to other international human rights related legislation, constitutions and declarations throughout the world. The measurement of a ‘society’s decency on civilization lies on the degree to which the conduct of criminal trial in that society conforms to such right.’
The right to be legally represented is generally regarded as constituent of the right to a fair trial and in Victoria, it is currently enshrined by s 197 of Criminal Procedure Act 2009 (Vic) and supported by the Judiciary Act 1903 (Cth) s 78. In Dietrich, the High Court found implied human rights in the Australian Constitution and held that where an accused appears before the court with a serious offence he has a right to a fair trial and if the trial is subject to unfairness because the accused’s inability...
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