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Week 12: Right to a Fair Trial - Coggle Diagram
Week 12: Right to a Fair Trial
Unfairness may occur because of
admission of particular evidence
lack of prosecutorial, jury and/or judicial impartiality
delay before trial
BUT courts can act to prevent unfairness
Jago
Order for expedition - in pre-trial process
Stay of proceedings where unfairness is incurable, eg
Walton v Gardiner
Remedy is discretionary and may be denied if accused was responsible for delay
No legal right to a speedy trial - no constitutional guarantee
Judge's lack of attention to the evidence
Prejudicial pre-trial publicity
Inadequate legal representation
Protections against Unfairness
Legal Representation (criminal Code s 616; Dietrich)
Obligations of Disclosure
Prosecution Disclosure
Criminal Code s 590AB: Full and early disclosure required of:
all evidence to be used
all things in possession of the prosecution that would tend to help the case for the accused (Note
R v Button
[2001] QVA 133
In possession of prosecution includes things which arresting officer or prosecutor is aware of and would be able to locate without unreasonable effort (2 590AE))
Jury
Role of the Jury
Right to trial by jury (criminal Code s 604)
However potential for judge alone
Juries composed of 12 persons (Jury Act s 33)
Panel randomly selected from juror's list
Empanelling the jury
Jurors randomly selected from panel (Jury Act s 41)
Peremptory challenges (8 ea) (Jury Act s 42(3))
Challenges for Cause (Jury Act s 43)
Special Procedure re Challenge for Cause (Jury Act s 47) (R v Patel no 4) [2013] QSC 62)
Jurors sworn (Jury Act s 50)
Generally one indictment = one count = one trial
Public nature of the hearing
Accude's presence during the trial
Other methods
Separation of counts/accused
Severance of charges/Separate Trials of Accused
If a joinder may cause prejudice to the accused/if it is desirable the court can order separate trials on counts (Criminal Code s 597A(1))
An accused may apply to have a separate trial, and the court may order at any time during the trial (Criminal Code s 597B)
Refused in
R v Deemal-Hall, Darkan and McIvor
[2005] QCA 206
Transfer to other court/jurisdiction
Trial can occur in any jurisdiction within which an element of the offence occurs: Criminal Code s 557(1)
Ordinarily the trial should occur within the District where the crime occurred (
R v Long
[2001] QCA 318)
Transfer can occur upon application of Crown/Accused where good cause is shown (Criminal Code s 559)
Relevant considerations articulated in
R v Yanner
[1998] 2 Qd R 208
Stays/adjournment
A judicial order to stop proceedings
Temporary
Permanent (only in extreme circumstances)
where there is a fundamental defect that goes to the root of the trial of such a nature that nothing that the trial judge can do would relieve against its unfair consequences -
Jago
- note, not ordered in that case)
Objective is to prevent abuse of process and/or ensure fair trial to accused
Questioning of potential jurors/challenge procedure
Exclusion of evidence
Judicial Direction
Trial by judge alone
Prosecution/accused may apply ot court for no jury order (Criminal Code s 614)
If prosecutor applies, accused must consent to order *Criminal Code s 615(2))
Judge can make order if 'in the interests of justice' including
if unreasonably burdensome trial, length/complexity
Possibility of offences against jury members
Significant pre-trial publicity
Remedies for Unfairness
Appeal (Criminal Code s 668E)
Miscarriage of justice for any other reason
Abuse of Process
The courts 'can protect themselves against embarrassment arising from the consequences of bad prosecutions being pursued to trial. If the pursuit of a prosecution would amount to an abuse of process of the court, then the court can intervene.' Colvin [27.29]
Stays may be ordered where
prosecution is instituted for an improper purpose
there are separation of powers concerns
the prosecution is oppressive:
-due to delay
-because it is doomed to fail
-there is an issue with double jeopardy
Oppression
Delay in prosecution impedes defence - Jago
Other illegality can be attributed to the prosecuting authorities - Moti 2011
Foredoomed to fail - Ridgeway
In breach of expectation of finality Walton v Gardiner (1993) 177 CLR 378)
Double Jeopardy
1 more item...
Improper Purpose
Proper purpose of a prosecution - to obtain a conviction (
William v Spautz
(1992) 174 CLR 509)
any other purpose will be improper
what if there is both?
-then question to be considered is whether the improper purpose is the predominant one