HS L4 - Rights of the Accused

Question 1

What legislation protects the three rights of the accused?

Answer 1

• The Charter of Human Rights and Responsibilities Act 2006 (Vic)

Question 2

The right to be tried without unreasonable delay (RTWUD) - definition

Answer 2

• The Charter states that a person charged with the criminal offence is entitled to a guarantee that they will be tried without unreasonable delay in Sections 21 and 25
• Every accused person is entitled to this provision

Question 3

RTWUD - factors considered when determining ‘reasonable’

Answer 3

• The length of delay
• The complexity of the case
• The number of offences committed
• The reasons for delay

Question 4

RTWUD - why is it important?

Answer 4

• Witnesses memories can fade, which could lead to unreliable evidence being given
• An upcoming trial can cause stress for the accused, victims and their families
• If there is media attention existent, long delays can make it hard to find unbiased jury members
• Long delays before the trial can increase legal costs

Question 5

The right to silence (RTS) - definition

Answer 5

• The right to silence refers to an entitlement whereby the accused does not have to say or do anything when being charged with an offence
• This right is incorporated in the Evidence Act 2008, which states that negative inferences cannot be made should an accused invoke this right
• Selective silence does not conclude guilt

Question 6

RTS - how is it safeguarded?

Answer 6

• The accused can refuse to answer any questions and does not have to give information as part of an investigation of a crime
• The accused cannot be forced to give evidence in a criminal trial or answer any questions
• The accused does not have to file a defence or call a particular witness
• Under the Jury Direction Act 2006 (Vic), an accused’s lawyer can request that the judge direct the jury to be aware that the failure of an accused to give evidence or call witnesses cannot be used as evidence against the accused as a sign of guilt

Question 7

RTS - exception

Answer 7

• If the police believe that a person has committed or is about to commit a crime, or may be able to assist in an investigation, this person must give their name and address if asked to

Question 8

RTS - why is it important?

Answer 8

• The right reinforces the burden of proof in a criminal case in that the onus rests upon the prosecution, as the accused does not have to even set a defence
• Prevents self-incrimination by ensuring that an accused is able to refrain from making statements that could be incriminating
• Reduces the power and balance between the prosecution and the accused by preventing unlawful coercion

Question 9

The right to trial by jury (RTTBJ) - definition

Answer 9

• The right to trial by jury refers to the entitlement that should an accused plead not guilty to an indictable offence, their guilt must be determined by a group of twelve peers rather than a judge alone

Question 10

RTTBJ - relevant legislation

Answer 10

• The Juries Act 2000 (Vic) requires there to be a jury of twelve
• The Criminal Procedure Act 2009 (Vic) contains provisions around jury empanelment and direction

Question 11

RTTBJ - why is it important?

Answer 11

• Provides the accused with an impartial and unbiased decision maker in criminal cases because jurors do not have any connection to either the prosecution or the accused and do not have prior knowledge about the facts of the case
• It will likely result in lawyers using clear, plain English instead of legal jargon when presenting evidence
• Usually requires a unanimous verdict, but a majority verdict (11 of 12) can be allowed, and due to the high standard of proof, this is likely to prevent wrongful conviction
• It will be more likely to represent a cross section of the community, rather than judges, as the jurors are likely to be of diverse experience, socio-economic status, age, occupation and ethnicity

Question 12

RTWUD - strengths

Answer 12

• Do not have to endure a prolonged periods of stress and anxiety
• Witnesses are more likely to remember key facts of the events they saw if a criminal trial takes place in a reasonable time, promoting fairness

Question 13

RTWUD - limitations

Answer 13

• A trial that is delayed for years can still be considered reasonable if the delay was a result of the actions of the accused, such as a complex crime
• Considering a trial may be delayed for extended periods if reasonable, the memory of witnesses can fade

Question 14

RTS - strengths

Answer 14

• Presumption of innocence is upheld by the right to silence, as an accused is presumed innocent and does not need to say anything to achieve this presumption
• It can reduce the power and balance between the prosecution and the accused

Question 15

RTS - limitations

Answer 15

• A jury can still inadvertently believe an accused failing to defend themselves is an indicator of guilt
• There are exceptions to the right, such as having to give your name and address

Question 16

RTTBJ - strengths

Answer 16

• The use of a jury aims to ensure an accurate reflection of society selected at random to determine an accused’s guilt, therefore promoting fairness
• Juries will encourage lawyers to speak clearly and avoid using legal jargon when presenting evidence

Question 17

RTTBJ - limitations

Answer 17

• It can be costly and time consuming for the criminal justice system, as jurors must be paid for their participation, which can then impede the ability of the right to trial without unreasonable delay as they place strain on the system
• Juries may not always be impartial, as they could be swayed by preconceived biases or emotions