the rights of an accused

Question 1

rights available to an accused

Answer 1

• the right to be tried without unreasonable delay
• the right to silence
• the right to trial by jury

Question 2

Human Rights Charter

Answer 2

• the Charter of Human Rights and Responsibilities Act 2006 (Vic)
• its main purpose is to protect and promote human rights, and designed to ensure that any statute passed by the victorian parliament is compatible with the rights set out in the charter
• rights are based on those in the International Covenant on civil and political rights 1966 (an international treaty to which Australia is a signatory to)

Question 3

the right to be tried without unreasonable delay

Answer 3

• accused is entitled to have their charges heard in a timely manner, and that delays should only occur if they are considered reasonable
• this right acknowledges that there may be delays, but that those delays must be reasonable
• the reasonableness of any delay will depend on factors such as the complexity of the case and the legal issues involved

Question 4

the right to be tried without unreasonable delay (18 years and under)

Answer 4

• the Charter states that an accused child must be brought to trial as quickly as possible
• having a trial ‘as quickly as possible’ rather than ‘without unreasonable delay’ places a greater burden on the prosecution, because of the impact that a trial may have on a child
• source: Human Rights Charter

Question 5

the right to silence

Answer 5

• an accused has this right when questioned or when asked to give information in the investigation
• also have the right to stay silent in a criminal proceeding and not be required to give evidence or cal a particular witness
• right to refuse to answer any questions and not give any information as part of the investigation
• accused cannot be forced to give evidence in a trial or answer any questions, file any defence, or call a witness as part of trial
• right to be free from self-incrimination, accused must not be compelled to testify against theirself in the court or to confess guilt

Question 6

the right to silence - common law

Answer 6

• accused has the right to remain silent
• no negative conclusions can be drawn from the fact that a person has not answered any questions or given any evidence (should not be assumed that accused is guilty because they have failed or refused to say or do anything)
• no conclusions should be drawn that a new defence is ‘suspicious’ where the accused relies on a defence that was not raised earlier
• if accused has chosen to answer some questions but not others (selective silent), cannot be used to conclude guilt

Question 7

the right to silence - statute law

Answer 7

• s.89 of the Evidence Act 2008 (Vic), states that unfavourable conclusions cannot be drawn because a person has failed or refused to answer questions or respond to a matter put to them in an investigation
• judge may direct the jury that accused has a fundamental right to remain silent, and that the jury should not conclude that the accused is guilty because they remain silent (must also not suggest to jury that it can conclude the accused is guilty because they did not give evidence or call a particular witness)

Question 8

the right to trial by jury

Answer 8

• jury system provides the opportunity for community involvement in the legal process, and for the law to be applied according to community standards
• impartiality is achieved by judgement of ones peers and by an effort to empanel jury members who do not come to trial with preconceptions about the case or personal biases
• some people are excluded from jury service to ensure this
• no right to trial by jury for summary offences

protected in part by:
- stature law in Victoria for state indictable offences
- Australian Constitution for Commonwealth indictable offences

Question 9

define jury

Answer 9

an independent group of people chosen at random to determine questions of fact in a trial and reach a decision (i.e. a verdict)
- decide whether or not the accused is guilty (indictable offences only)
- jury will hear the case and will need to reach a verdict of whether the accused is quilty or not, and must make this decision beyond reasonable doubt

Question 10

the right to trial by jury - state indictable offences

Answer 10

• in Victoria, all indictable offences in the County or Supreme are heard before a jury of 12 (or up to 15) randomly selected citizens
• this right is protected in the Juries Act 2000 (Vic)
• both Acts also contain provisions about processes in relation to jury empanelment and directions to be given to juries
• court can order the empanelment of up to 3 more jurors, but only 12 will ultimately deliberate and determine the verdict
• this helps any disruptions at trial (for example, if one or more of the jurors gets sick)

Question 11

the right to trial by jury - commonwealth indictable offences

Answer 11

• s. 80 of the Australian Constitution states that any person who is charged with a commonwealth indictable offence is entitled to a trial by jury (this provides only a limited right to trial by jury, as most indictable offences are crimes under state law, this section only applies to commonwealth offences)
• meaning, all such commonwealth trials must be conducted as jury trials (not for trials involving state offences)
• previously, an accused cannot chose to be tried by a judge alone if they have been charged with a commonwealth indictable offence
• commonwealth indictable offences are serious offences set out in commonwealth law
• examples are organ trafficking, terrorism, importation of illegal drugs