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A Constitutional Right to a Fair Trial? Implications for the Reform of the Australian Criminal Justice System

Published online by Cambridge University Press:  24 January 2025

Janet Hope
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Extract

In the past decade problems of expense and delay in the administration of criminal justice have been the subject of numerous expressions of concern. In several Australian jurisdictions, legislative measures designed to improve the administrative efficiency of the criminal justice system so that cases can be disposed of more quickly and cheaply have been introduced. In many cases such legislation has had the effect of diminishing the protections available to accused persons.

The laws which govern the conduct of criminal proceedings in our society reflect the policy that it is preferable for a guilty person to go unpunished than for an innocent person to be convicted. On this basis, as a matter of legal principle, an accused person must be presumed innocent until proven guilty beyond reasonable doubt. It follows that an accused person should not be obliged to help the prosecution establish its case and that no penalty should be imposed in relation to a crime until after a defendant has been convicted.

Type
Research Article
Information
Federal Law Review , Volume 24 , Issue 1 , March 1996 , pp. 173 - 199
Copyright
Copyright © 1996 The Australian National University

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Footnotes

*

This paper was submitted in partial fulfilment of the requirements of the Bachelor of Laws with Honours degree, Australian National University, in October 1995. The author wishes to thank Professor A D Hambly, Mr G Williams and Ms F Wheeler for valuable comments provided during the preparation of this manuscript.

References

1 Barnard, A and Withers, G, Financing the Australian Courts (1989)Google Scholar; Brunton, N, Freckelton, I and Waghom, G, “Opinion: Law and Order Developments in Victoria” (1993) 18 Alt L J 102Google Scholar; Byrne, P, “Criminal Law and Justice” (1989) 63 ALJ 426Google Scholar; “Court Delays” [1989] Reform 94; Dowd, J, “Committal Reform: Radical or Evolutionary Change?” (1990) 2 Current Issues in Criminal Justice 10CrossRefGoogle Scholar; Giddings, J, “Legal Aid in Victoria: Cash Crisis” (1993) 18 Alt L J 130Google Scholar; National Crime Authority, National Complex White Collar Crime Conference (15-17 June 1992) (1993); Shorter Trials Committee, Report on Criminal Trials (1984); Samuels, G J, “The Economics of Justice” (1991) 1 JJA 114Google Scholar; F H Vincent, “The High Court v the Trial Judge?” in Convention Papers, 28th Legal Convention (26-30 September 1993) Vol 2 at 263; M Weinberg, “Complex Fraud Trials – Reducing Their Length and Cost” (1992) 1 JJA 151.

2 Below rm 96 to 103.

3 Jago v District Court of New South Wales (1989) 168 CLR 23 at 56-7 per Deane J; Dietrich v R (1992) 177 CLR 292 at 299 per Mason CJ and McHugh J.

4 This is the traditional view of common law rights (G Williams, “Civil Liberties and the Constitution – a Question of Interpretation” (1994) 5 PLR 82). A more radical view will be considered in Part Two below.

5 These include specific rules relating to the right to silence and the admissibility of confessions, improperly obtained evidence, identification evidence, similar facts, evidence as to bad character and evidence given by accomplices or prison informers. They also include the rules governing the more general duties of the trial judge when conducting the trial of an unrepresented accused and those relating to evidence which is or could be unfairly prejudicial to the accused. More detailed references can be found in K P Duggan, “Reform of the Criminal Law with Fair Trial as the Guiding Star” in Proceedings of the Supreme Court and Federal Court Judges' Conference, Adelaide 1995 (1995); J Badgery-Parker, “The Criminal Process in Transition: Balancing Principle and Pragmatism - Part I” (1995) 4 JJA 171 at 172-5; and see generally P Waight and CR Williams, Evidence: Commentary and Materials (4th ed 1995).

6 A Choo, Abuse of Process and Judicial Stays of Proceedings (1993) at 2-7.

7 (1989) 168 CLR 23.

8 (1980) 147 CLR 75 at 96-7 per Gibbs and Mason JJ.

9 (1989) 168 CLR 23 at 29.

10 Ibid at 24 per Stephen J, at 25 per Murphy J and at 26 per Wilson J.

11 R Fox, “Jago's Case: Delay, Unfairness and Abuse of Process in the High Court of Australia” (1990] Crim L R 552 at 553.

12 (1992) 177 CLR 292.

13 Ibid at 315.

14 Ibid at 325.

15 Ibid at 362-3.

16 Ibid at 326.

17 (1991) 98 ALR 577.

18 (1992) 110 ALR 385.

19 (1993) 113 ALR 1.

20 (1980) 147 CLR 75.

21 (1989) 168 CLR 23.

22 (1992) 177 CLR 292.

23 Jago v District Court of New South Wales (1989) 168 CLR 23 at 49 per Brennan J.

24 Dietrich v R (1992) 177 CLR 292 at 353 per Toohey J.

25 Ibid at 328 per Deane J.

26 Ibid at 364 per Gaudron J.

27 Paciocco, D, “The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept” (1991) 15 Crim LJ 315Google Scholar.

28 Jago v District Court of New South Wales (1989) 168 CLR 23 at 39.

29 Dietrich v R (1992) 177 CLR 292 at 349-50; see also McKinney v R (1991) 98 ALR 577 at 586 per Brennan J.

30 [1964] AC 1254.

31 Ibid at 1354.

32 (1992) 177 CLR 292.

33 Ibid at 326 per Deane J and at 362 per Gaudron J.

34 Crimes (Criminal Trials) Act 1993 (Vic); see Corns, C, “Anatomy of Long Criminal Trials: a Preliminary View” in Proceedings of the 14th Annual Conference of the Australian Institute of Judicial Administration (1995)Google Scholar.

35 R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128; R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556; Kingswell v R (1985) 159 CLR 264.

36 See R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 at 580-2 per Dixon and Evatt JJ, and the judgments of Deane and Brennan JJ in Kingswell v R (1985) 159 CLR 264.

37 For example, Street v Queensland Bar Association (1989) 168 CLR 461; Leeth v Commonwealth (1992) 174 CLR 455. See generally J Doyle and B Wells, “How Far Can the Common Law Go Towards Protecting Human Rights?” in P Alston (ed), Towards an Australian Bill of Rights (1994) 119.

38 J Badgery-Parker, above n 5 at 177.

39 I Killey, “'Peace, Order and Good Government': a Limitation on Legislative Competence” (1989) 17 Melb Univ LR 24 at 24-9.

40 For example, Sillery v R (1981) 35 ALR 227 at 234 per Murphy J; Builders Labourers' Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372 at 382-5 per Street CJ and at 421 per Priestley JA.

41 I Killey, above n 39 at 41-55.

42 (1988) 166 CLR 1 at 10.

43 Ibid.

44 (1992) 177 CLR 292 at 326 per Deane J and at 362 per Gaudron J.

45 Leeth v Commonwealth (1992) 174 CLR 455 at 485 per Deane and Toohey JJ; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 26 per Brennan, Deane and Dawson JJ.

46 (1915) 20 CLR 54 (the Wheat case).

47 (1956) 94 CLR 254 (the Boilermakers' case).

48 (1995) 69 ALJR 191.

49 Ibid at 724.

50 (1977) 138 CLR 1.

51 Ibid at 11. See also Huddart, Parker & Co v Moorehead (1909) 8 CLR 330 at 380 per O'Connor J; Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 346 per Barton J; Hammond v the Commonwealth (1982) 152 CLR 188 per Deane J; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

52 (1989) 166 CLR 518 at 580.

53 (1991) 172 CLR 84 at 150.

54 Ibid at 461.

55 Ibid at 496. See also the judgments of Deane and Gaudron JJ in Polyukhovich v Commonwealth (1991) 172 CLR 501.

56 Ibid at 685.

57 (1992) 177 CLR 1 at 69-70.

58 Leeth v Commonwealth (1992) 174 CLR 455 at 470; see also Deane and Toohey JJ at 485-487.

59 (1992) 176 CLR 1.

60 Ibid at 27.

61 The case of Kruger v Commonwealth, which was heard before the High Court of Australia in Canberra on 12-15 February 1996, may provide an opportunity for one of the two recently appointed members of the High Court, Justice Gummow, to express his views on the subject of implied constitutional rights. The other recent appointee, Justice Kirby, did not hear the case. It is worth noting, however, that in his judgment in Ngoc Tri Chau v Director of Public Prosecutions (Cth) (1995) 132 ALR 430, a case in which the validity of a piece of New South Wales legislation was challenged on the grounds that it breached the constitutional guarantee of fair process in criminal proceedings referred to by Deane and Gaudron JJ in Dietrich, Justice Kirby, then President of the New South Wales Court of Appeal, remarked (at 445): “I have some sympathy for the notion of a constitutionally implied principle of equality of treatment in the application of the judicial power of the Commonwealth as discussed in Leeth”. Moreover, all the members of the Court of Appeal in Ngoc Tri Chau were prepared to accept for the sake of argument that there exists a constitutional guarantee of due process in criminal cases based on Chapter III.

62 No attempt has been made in this article to address the question whether a right to a fair trial derived from the Commonwealth separation of judicial power would apply in the Territories. Since the decision of the High Court in R v Bernasconi (1915) 19 CLR 629, to the effect that the exercise of Commonwealth legislative power with respect to the Territories under s 122 of the Constitution is not restricted by s 80, there has been no clear indication whether and if so to what extent the provisions of Chapter III apply in the Territories. For a detailed discussion of this complex issue, see Z Cowen and L Zines Federal Jurisdiction in Australia (2nd ed 1978), ch 4. The relationship between s 122 and Chapter III was argued before the High Court in Kruger v Commonwealth (High Court of Australia, 12-15 February 1996).

63 Pursuant to the Constitution (Entrenchment) Amendment Act 1992 (NSW), which commenced in May 1995. For an outline of the legal basis for the ability of the Parliaments of the Australian States to bind their successor Parliaments in relation to constitutional matters, see Carney, G, “An Overview of Manner and Form in Australia” (1989) 5 QUTLJ 70Google Scholar.

64 These arguments were referred to by Toohey Jin McGinty & Ors v State of Western Australia (High Court of Australia, 20 February 1996, unreported).

65 Nicholas v State of Western Australia [1972] WAR 168; Clyne v East [1967] 2 NSWR 483; Builders Labourers' Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372. See also RD Lumb, The Constitutions of the Australian States (5th ed 1991) at 132 and Marquet, L, “The Separation of Powers Doctrine and the Constitution of Western Australia” (1990) 20 UWALR 445Google Scholar. In the light of developments in New South Wales (above n 63), it is difficult to assess the impact of the New South Wales authorities on arguments for the implication of a guarantee of judicial independence in the constitutions of other States. It could be argued that the introduction in New South Wales of a manner and form restriction on the enactment of legislation which interferes with the independence of the judiciary indicates that it would have been impossible to imply such a restriction in the New South Wales constitution as it stood before 1995. On the other hand, the 1995 manner and form legislation might be seen as merely a confirmation of a general principle which is contained, express or implied, in the constitutions of all the Australian States.

66 Craven, G, “A Few Fragments of State Constitutional Law” (1990) 20 UWALR 353 at 359Google Scholar; see also Thomson, J, “State Constitutional Law: the Quiet Revolution” (1990) 20 UWALR 311 at 314Google Scholar and Malcolm, D, “The State Judicial Power” (1991) 21 UWALR 7Google Scholar.

67 The implication of a restriction on State legislative power from the provisions of the relevant State constitution would not be without precedent: Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211. See also McGinty & Ors v State of Western Australia (High Court of Australia, 20 February 1996, unreported) transcript at 59 per Toohey J.

68 An equivalent argument was referred to in Theophanous v Herald & Weekly Times (1994) 182 CLR 104 at 155-6 per Brennan J, at 164-7 per Deane J and at 201-2 per McHugh J and in McGinty & Ors v State of Western Australia (High Court of Australia, 20 February 1996, unreported) per Toohey J in relation to the implied freedom of political speech first identified by the High Court in Australian Capital Television Pty Ltd v Commonwealth (1992) 177CLR 106.

69 “S” (a child) v R (Supreme Court of Western Australia, 3 February 1995, unreported), in which an argument for the application of the separation of judicial powers argument to the States was considered and rejected.

70 McGinty & Ors v State of Western Australia (High Court of Australia, 20 February 1996, unreported) per Toohey J.

71 A similar argument was put forward by the plaintiff in Kahle v Director of Public Prosecutions (NSW) (High Court of Australia, 7-8 December 1995).

72 Ibid per McHugh J.

73 Constitutional Commission, Report of the Advisory Committee on the Australian Judicial System (1987) at 68.

74 (1994) 182 CLR 104 at 122.

75 The plaintiff in Kahle v Director of Public Prosecutions (NSW) (High Court of Australia, 7-8 December 1995) made the point that Chapter III seems to require a unified Australian judiciary.

76 (1988) 166 CLR 1 at 10.

77 This section is not intended to cover all the issues raised by an argument for a constitutional right to a fair trial based on the common law. For a more detailed analysis, see: Allan, TR S, “Constitutional Rights and Common Law” (1991) 11 OJLS 453CrossRefGoogle Scholar; Allan, TR S, “Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism” (1985) 44 CLJ 111CrossRefGoogle Scholar; Brennan, G, “Courts, Democracy and the Law” (1991) 65 ALJ 32Google Scholar; Craven, G, “After Literalism, What?” (1992) 18 Melb Univ LR 874Google Scholar; Craven, G, “Cracks in the Facade of Literalism: Is There an Engineer in the House?” (1992) 18 Melb Univ LR 540Google Scholar; Sir Dixon, Owen, “The Common Law as an Ultimate Constitutional Foundation” in Jesting Pilate (1965) 203Google Scholar; McHugh, M, “The Law-making Function of the Judicial Process” (1988) 62 ALJ 15 at 15-31Google Scholar and 115-127; O'Neill, N, “Blue-eyed Babies May be Murdered: Dicey's First Principle Upheld in the Court of Appeal” (1987) 12 LSB 2Google Scholar; Smallbone, D, “Recent Suggestions of an Implied 'Bill of Rights' in the Constitution, Considered as Part of a General Trend in Constitutional Interpretation” (1993) 21 f L Rev 254CrossRefGoogle Scholar; Justice Toohey's extra-curial speech, reported in Virtue, B, “The End of Democracy?” (November 1992) Aust Law News 7Google Scholar; G Williams, above n 4; Winterton, G, “Extra-constitutional Notions in Australian Constitutional Law” (1986) 16 f L Rev 223CrossRefGoogle Scholar; Zines, L, “A Judicially Created Bill of Rights?” (1994) 16 Syd LR 166Google Scholar; Zines, L, The High Court and the Constitution (3rd ed 1992), ch 15Google Scholar.

78 Dr Bonham's case (1609) 77 ER 638 at 652 per Coke J.

79 (1986) 7 NSWLR 372.

80 N O'Neill, above n 77 at 4; D Smallbone, above n 77 at 260.

81 (1991) 172 CLR 501 at 687.

82 Zines, L, “A Judicially Created Bill of Rights?” above n 77 at 180Google Scholar.

83 Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 at 398; see also New Zealand Drivers Association v New Zealand Road Carriers [1982] 1 NZLR 347 at 390 and Fraser v State Services Commission [1984] 1 NZLR 116 at 121. Note also the remarks of Gummow J in Kruger v Commonwealth (High Court of Australia, 12-15 February 1996) to the effect that it might be necessary to rethink the question of whether the British Parliament is constrained by fundamental common law rights in the light of the recent entry of the United Kingdom into the European Community.

84 (1951) 83 CLR 1 at 193.

85 McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 670; see also R v Director of Social Welfare (Vic); Ex parte Henry (1975) 133 CLR 369 at 388, Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 267, Sillery v R (1981) 35 ALR 227 at 234 and Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556.

86 Since the enactment of the Australia Acts (Australia Act 1986 (Cth); Australia Act 1986 (UK)) some judges have taken the view that the true legal basis of the Commonwealth Constitution (and perhaps also the State constitutions) lies not in its validity as an Act of the Imperial Parliament but in its adoption and continuing acceptance by the Australian people (see, eg, Theophanous v Herald & Weekly Times (1994) 182 CLR 104 at 171 per Deane J; McGinty & Ors v State of Western Australia (High Court of Australia, 20 February 1996, unreported) transcript at 80 per McHugh J). If that view is correct, it must be presumed in the absence of unambiguous words to the contrary in the Constitution itself that the people, in conferring power to legislate with respect to various subject-matters on the Commonwealth Parliament, did not intend those grants of power to extend to invasion of fundamental common law liberties (see Justice Toohey's speech, above n 77).

87 (1992) 174 CLR 455 at 485-7 (emphasis added). See also Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 at 247-8 per Deane J and Street v Queensland Bar Assocation (1989) 168 CLR 461 at 554 per Toohey J.

88 See especially R v Macfarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR 518 at 541-2 per Isaacs J, quoted by Deane Jin Dietrich v R (1992) 177 CLR 292 at 326.

89 Constitutional Commission, Report of the Advisory Committee on Individual and Democratic Rights Under the Constitution (1987) at 3; Ex parte Walsh and Johnston: in R Yeats (1925) 37 CLR 36 at 79 per Isaacs J.

90 Above n 86; and see L Zines, “The Sovereignty of the People”, paper delivered at the Conference on the Constitution and Australian Democracy, Canberra, 9-11 November 1995.

91 (1992) 177 CLR 1 at 69-70 (emphasis added).

92 Theophanous v Herald & Weekly Times (1994) 182 CLR 104 at 142.

93 Zines, L, The High Court and the Constitution n 77 at 337Google Scholar.

94 Zines, L, “A Judicially Created Bill of Rights?” n 77 at 183Google Scholar.

95 In the Introduction.

96 See Human Rights Commission, Review of Crimes Act 1914 and other Crimes Legislation of the Commonwealth (Report No 5, 1983); Commonwealth Attorney-General's Department, Review of Commonwealth Criminal Law Final Report (1991); Law Reform Commission of Tasmania, Research Paper on Statutory Provisions Imposing a Burden of Proof on Defendants (1985); Legal and Constitutional Committee of Victoria, Report to Parliament on the Desirability or Otherwise of Legislation Defining and Protecting Human Rights (1987) at 57.

97 The Road Safety Act 1986 (Vic) prohibits certain grounds of defence to persons charged with having more than the prescribed concentration of alcohol in their blood.

98 Findlay, M, “International Rights and Australian Adaptations: Recent Developments in Criminal Investigation” (1995) 17 Syd LR 278 at 286-9Google Scholar.

99 Sections 56(2) and 60, Road Safety Act 1986 (Vic); Crimes (Custody and Investigation) Act 1988 (Vic); Telecommunications (Interception) (State Provisions) Act 1988 (Cth); Crimes (Blood Samples) Act 1989 (Vic); Crimes (Amendment) Act 1993 (Vic). See Clough, J, “Will Mercy Season Justice? An Analysis of Victorian Proposals Relating to the Physical Examination of Suspects (1990) 16 Mon LR 251Google Scholar; D Sandor and White, R, “Police Powers Extended” (1993) 18 Alt L J 299Google Scholar; Editorial (1984) 8 Crim L J 349; Editorial, (1987) 20 ANZJ Crim 193; Lane, D, “The Crimes (Custody and Investigation) Act 1988: New Rules on Questioning Suspects” (1989) 63 Law Inst J 384-6Google Scholar.

100 Sections 15 and 26 of the Crimes (Criminal Trials) Act 1993 (Vic) impose sanctions (in the form of a comment to the jury or a longer sentence, respectively) on an accused for unreasonable failure to co-operate with the pre-trial disclosure process provided for in s 11 of the Act.

101 See Human Rights Commission, above n 96 for Commonwealth provisions allowing for the indefinite detention of “habitual criminals” and the Sentencing (Amendment) Act 1993 (Vic) for similar provisions at the State level in relation to prisoners convicted of any of over sixty different offences who are considered to constitute a “serious danger to the community”.

102 See comments on the Drug Trafficking (Civil Proceedings) Act 1990 (NSW) in T Nym, “Drug Trafficking (Civil Proceedings) Act: Concern Over Access to Legal Representation” (1990) 28 Law Soc J 38

103 Other developments which could adversely affect the rights of accused persons include calls for the abolition of committal proceedings, the proliferation of various forms of “inquiry” into criminal activities in which the privilege against self-incrimination does not apply but which can lead to criminal prosecutions, and the creation of serious offences triable summarily.

104 Vic LA Deb 1993, Vol 411 at 1360.

105 Fletcher, K, “Legal Aid: Right or Privilege?” (1993) 18 Alt L J 21Google Scholar; J Giddings above n 1.

106 Lynch, J, “Section 360A and the Dietrich Dilemma” (1993) 67 Law Inst J 838Google Scholar; F H Vincent, above n 1.

107 Observers include KP Duggan, above n 5 at 19; Zdenowski, G, “Defending the Indigent Accused in Serious Cases: A Legal Right to Counsel?” (1994) 18 Crim L J 135Google Scholar.

108 Above nn 25 and 26.

109 Dietrich v R (1992) 177 CLR 292 at 337 per Deane J and at 371 per Gaudron J.

110 Ibid at 311.

111 Ibid at 315 per Mason CJ and McHugh J, summarising the position of the majority.

112 See J Badgery-Parker, above n 5; W F Braithwaite, “Dietrich: Practical Application” presented at the Law Society of South Australia Criminal Law Conference, October 1994; “Dietrich v the Queen” (1993) 147 ACT Law Soc Gazette 47; KP Duggan, above n 5; G Durie “No Fair Trial Without Representation: New Trial Ordered for Indigent Accused” (March 1993) Law Soc J 48; PA Fairall, “Trial Without Counsel: Dietrich v the Queen” (1992) 4 Bond L R 41; P Rofe, “Fair Trial and Reform of Criminal Law” (1995) Law Soc SA CLE; S Tilmouth,“Legal Aid in Australia” in Convention Papers, 28th Legal Convention (26-30 September 1993) Vol 2; G Zdenowski, above n 107.

113 Relevant decisions include R v Helfenbaum (1993) 65 A Crim R 264; Fuller v Field and South Australia (1994) 62 SASR 112 (special leave refused, 26 August 1994); New South Wales v Cannellis (1994) 124 ALR 513; R v Small (1994) 33 NSWLR 575; South Australia v Judge and Russell (1994) 62 SASR 288; State of South Australia v Russell and Craig (1994) 176 LSJS 84; R v Kouronos (District Court of South Australia, 17 June 1993, unreported)

114 Dietrich v R (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J.

115 It is clear that even those protections which are included in Article 14 and are regarded as deeply ingrained in the common law would not necessarily be seen as essential elements of an implied constitutional right to a fair trial. For example, the privilege against self-incrimination, which is found in Article 14(3)(g) of the ICCPR and which has been described as a “cardinal principle” of the administration of Australian criminal law (Sorby v Commonwealth (1983) 152 CLR 281 at 294 per Gibbs J), is certainly liable to modification or abrogation by the legislature: Sorby v Commonwealth (1983) 152 CLR 281; Reid v Howard (1995) 69 ALJR 863 per Toohey, Gaudron, McHugh and Gummow JJ.

116 KP Duggan, above n 5 at 29; Kirby, M, “The Australian Use of International Human Rights Norms: From Bangalore to Balliol – a View From the Antipodes” (1993) 16 UNSWLJ 363Google Scholar; Mathew, P, “International Law and the Protection of Human Rights in Australia: Recent Trends” (1995) 17 Syd LR 151Google Scholar.

117 Dietrich v R (1992) 177 CLR 292 at 293.

118 Ibid at 307.

119 For examples of United States cases which are relevant to the scope of the right to counsel, see Mason, A, “Fair Trial” (1995) 19 Crim L J 7 at 9Google Scholar.

120 Dietrich v R (1992) 177 CLR 292 at 333.

121 See New South Wales v Cannellis (1994) 124 ALR 513, in which it was decided that legal representation need not be provided to witnesses to a Royal Commission who were at risk of prosecution as a result of giving evidence, and Fuller v Field and South Australia (1994) 62 SASR 112, in which the High Court refused special leave to appeal from a South Australian Supreme Court decision to the effect that the majority ruling in Dietrich did not apply to committal proceedings. See A Mason, above n 119.

122 (1992) 177 CLR 292.

123 This issue is further complicated by a recommendation of the working party set up by the Standing Committee of Attorneys-General to report on action to be taken in light of the Dietrich decision, to the effect that each jurisdiction should enact legislation equating the relevant Legal Aid Commission's assessment as to means with the concept of indigence for the purposes of the Dietrich principle. See Commonwealth Director of Public Prosecutions, Annual Report (1992-3) at 85-6.

124 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 267 per Murphy J.

125 See Theophanous v Herald & Weekly Times (1994) 182 CLR 104 at 125 per Mason CJ, Toohey and Gaudron JJ.

126 The outcome of the case of Kruger v Commonwealth (High Court of Australia, 12-15 February 1996), in which the plaintiffs did claim damages for the breach of certain implied constitutional freedoms which they characterised as free-standing rights, is awaited with interest.

127 See the judgments of Brennan and Dawson JJ in Dietrich v R (1992) 177 CLR 292.

128 Aboven3.

129 See Sallman, P and Willis, J, Criminal Justice in Australia (1984) at 91-2Google Scholar.

130 See the discussion by L Zines of Brown v R (1986) 160 CLR 171 in The High Court and the Constitution, above n 77 at 328.

131 (1992) 177 CLR 292: “S” (a child) v R (Supreme Court of Western Australia, 3 February 1995, unreported); Commonwealth Director of Public Prosecutions v Phillip Andrew Bayly (Supreme Court of South Australia, 4 November 1994, unreported); Ngoc Tri Chau v Director of Public Prosecutions (Cth) (1995) 132 ALR 430.

132 J Badgery-Parker, above n 5 at 172; see also Barton v R (1980) 147 CLR 75 at 101 per Gibbs ACJ and Mason J, quoted in Dietrich v R (1992) 177 CLR 292 at 335 per Deane J.

133 J Badgery-Parker above n 5 at 179

134 McKinney and Judge v R (1991) 98 ALR 577.

135 Badgery-Parker, J, “The Criminal Process in Transition: Balancing Principle and Pragmatism–Part II” (1995) 4 JJA 193 at 209Google Scholar.

136 Controversial areas in which State and Territory governments have recently taken the initiative include the introduction of legislation permitting voluntary euthanasia and the drafting of experimental Bills of Rights. Regarding the flexibility of State constitutions, see G Craven, “A Few Fragments of State Constitutional Law” (1990) 20 UWALR 353 at 355.

137 For example, the Australian Law Reform Commission has suggested that the decision in Dietrich has the potential to create a barrier to women's access to justice by directing legal aid funding away from family law matters to criminal matters: Australian Law Reform Commission, Equality Before the Law: Justice for Women (Report No 69, 1994) at 97. See also F H Vincent, above n 1.

138 In August 1992 a special meeting of the Standing Committee of Attorneys-General adopted the recommendation of the National Crime Authority 1992 White Collar Crime Conference that it conduct research into the “anatomy” of long criminal trials. The Committee formally referred this project to the Australian Institute of Judicial Administration, which is currently supervising a number of research projects aimed at streamlining the conduct of criminal trials. See C Corns, above n 34.

139 See Dietrich v R (1992) 177 CLR 292 at 325 per Brennan J.