The Rights of an Accused (VCE SSCE Legal Studies): Revision Notes
The Rights of an Accused
Human rights protection is a fundamental aspect of Australia's democratic and social systems. While all Australians enjoy certain basic rights (such as freedom of political expression, freedom of movement, and the right to cultural and religious practices), those accused of crimes have additional specific protections. This note examines three key rights available to individuals accused of criminal offences in Victoria.
Introduction to the rights of an accused
The Human Rights Charter
In Victoria, many rights are safeguarded by the Charter of Human Rights and Responsibilities Act 2006 (Vic), commonly called the Human Rights Charter or Victorian Charter of Human Rights. The primary aim of this legislation is to protect and promote human rights by ensuring that any law passed by the Victorian Parliament is compatible with the rights outlined in the Charter.
The Human Rights Charter draws its foundation from the International Covenant on Civil and Political Rights (1966), an international treaty (a legally binding agreement between countries) to which Australia is a signatory. While many rights in the Charter mirror those in the Covenant, some have been adapted to align with Australia's existing legal framework.
Rights specific to accused persons
Sections 23 to 27 of the Human Rights Charter outline rights available to an accused in criminal proceedings. These rights apply only to natural persons (human beings), not to corporate entities such as companies.
Beyond the Human Rights Charter, other legislation also provides protections for accused persons. The three essential rights that students must understand are:
- The right to be tried without unreasonable delay
- The right to silence
- The right to trial by jury
The right to be tried without unreasonable delay
What this right means
The Human Rights Charter guarantees that a person charged with a criminal offence is entitled to have their case heard in a timely manner. This right applies without discrimination, meaning every accused person has this protection regardless of their prior criminal history or personal characteristics.
The right acknowledges that some delays may occur during criminal proceedings, but these delays must not be unreasonable. The term 'unreasonable delay' is not strictly defined in legislation; instead, courts assess the reasonableness of any delay based on factors including:
- The complexity of the case
- The number of charges involved
- The number of accused persons
- The availability of witnesses
- The number of crime scenes requiring investigation
For instance, a case involving multiple crime scenes, several accused persons, and limited witnesses would reasonably require more preparation time than a straightforward case with multiple witnesses to a single incident.
Legal basis
This right is established in two sections of the Human Rights Charter:
- Section 25(2)(c) states that a person charged with a criminal offence is entitled to be tried without unreasonable delay
- Section 21(5) provides that a person arrested or detained on a criminal charge has the right to be brought to trial without unreasonable delay
The connection to section 21(5) is particularly significant because the Charter recognises that people have a fundamental right to liberty and security. Since accused persons are presumed innocent until proven guilty, they should not be held in custody for an unreasonable period while awaiting trial.
Special provisions for children
The Human Rights Charter establishes a higher standard for accused children (persons under 18 years of age). Children must be brought to trial as quickly as possible, rather than merely without unreasonable delay. This stricter requirement recognises the greater impact that criminal proceedings can have on young people.
Case study: Gray v DPP [2008]
Case Study: Gray v DPP [2008]
This case illustrates how courts apply the right to be tried without unreasonable delay.
Facts:
- The accused faced several indictable offence charges for events allegedly occurring in November 2007
- He was remanded (kept in custody until trial) while a co-accused was released on bail (released from custody with the condition of attending court hearings)
- By January 2008, no committal hearing date had been set
- The trial was expected to occur in October or November 2008, though this was uncertain
- Additional charges relating to earlier incidents were being considered
Outcome: Justice Bongiorno of the Supreme Court of Victoria referenced the Human Rights Charter and ordered the accused's release on bail. The judge noted that by the time of trial, the accused might have already spent more time in custody than any potential prison sentence he might receive if convicted. The court determined that releasing the accused on bail was the only available remedy to protect his rights under the Charter.
The right to silence
Components of the right to silence
The right to silence encompasses several distinct protections for accused persons:
- During investigation: The accused can refuse to answer questions and is not required to provide information during a criminal investigation
- During trial: The accused cannot be compelled to give evidence, answer questions, file a defence, or call particular witnesses
Legal foundations
The right to silence is protected by both common law (judge-made law through court decisions) and statute law (legislation passed by parliament).
Common law protections include:
- An accused person has the right to remain silent
- No adverse inferences (negative conclusions) can be drawn from a person's silence
- It should not be assumed that silence indicates guilt
Statute law protection is found in section 89 of the Evidence Act 2008 (Vic), which states that unfavourable inferences cannot be drawn because a person has failed or refused to answer questions or respond to matters put to them during an investigation.
Extended protections
The right to silence extends to several specific situations:
- Late-raised defences: If an accused later relies on a defence not mentioned earlier, no conclusions should be drawn that this defence is a "new invention" or "suspicious"
- Selective silence: If an accused answers some questions but not others, this cannot be used to infer guilt
Judicial directions
When instructing a jury, a judge may direct jurors that the accused has a fundamental right to remain silent and that they must not conclude guilt based on the accused's silence. Judges are also prohibited from suggesting to juries that they can infer guilt because the accused did not give evidence or call a particular witness.
Exception to the right to silence
There is one significant exception: if police believe a person has committed or is about to commit a crime, or may assist in investigating an indictable offence, the person must provide their name and address if asked to do so.
Case study: Weissensteiner v The Queen (1993)
Case Study: Weissensteiner v The Queen (1993)
This case demonstrates how the law regarding the right to silence has evolved.
Facts:
- Weissensteiner was charged with murdering two companions while travelling on a boat
- His companions disappeared and were never found
- The accused remained silent throughout the investigation and trial
- The trial judge instructed the jury that an inference of guilt "may be more safely drawn from the proven facts when an accused person elects not to give evidence of relevant facts that can be easily perceived must be within his knowledge"
- In other words, the jury was told they could assume guilt more safely when the accused chose not to give evidence about something only they could explain
- The jury convicted Weissensteiner, and the High Court upheld the conviction
Legal changes: The Jury Directions Act 2015 (Vic) subsequently abolished this principle (known as the Weissensteiner principle). Section 41 now requires that if an accused does not give evidence or call a particular witness, the judge may direct the jury but must explain:
- The prosecution has the burden of proof
- The accused is not required to give evidence or call a witness
- The fact that the accused did not do so is not evidence against them
This change strengthened the right to silence by ensuring that juries cannot draw adverse inferences from an accused's decision not to testify.
The right to trial by jury
What is trial by jury?
A trial by jury allows a person's peers within the community to decide the outcome of a criminal case – specifically, whether the accused is guilty or not guilty. This right has deep historical roots, dating back to before the Magna Carta in England (1215), which established that no free person should be imprisoned except by lawful judgment of their peers.
The jury system serves two important purposes:
- It enables community participation in the legal process
- It allows the law to be applied according to community standards
Legal protection
Unlike the other two rights discussed, the right to trial by jury is not protected by the Human Rights Charter. Instead, it is protected by:
- Statute law for state indictable offences (Victorian legislation)
- The Australian Constitution for Commonwealth indictable offences
State indictable offences
For Victorian indictable criminal offences, the Juries Act 2000 (Vic) requires a jury of 12 members. The Criminal Procedure Act 2009 (Vic) and the Juries Act contain provisions about jury empanelment processes and directions to be given to juries.
Important limitation: There is no right to trial by jury for summary offences.
Jury composition
While a criminal jury comprises 12 jurors, the court may order the empanelment of up to three additional jurors (making up to 15 total). This provision considers factors such as the length and nature of the trial. However, only 12 jurors will ultimately deliberate on the accused's guilt. Additional jurors help avoid disruptions if, for example, jurors become ill during a lengthy trial.
The jury must reach a verdict of guilty or not guilty, making this decision beyond reasonable doubt.
Commonwealth indictable offences
Section 80 of the Australian Constitution states that any person charged with a Commonwealth indictable offence is entitled to a trial by jury. The High Court has interpreted this as a right that cannot be refused – meaning an accused cannot choose to be tried by a judge alone for Commonwealth indictable offences.
Commonwealth indictable offences are serious crimes under Commonwealth (federal) law, including:
- Organ trafficking
- Terrorism
- Importation of illegal substances
Limitations of section 80
Section 80 provides only a limited right to trial by jury because:
- Most indictable offences are crimes under state law, not Commonwealth law, so section 80 does not apply to them
- The Commonwealth Parliament can determine by statute which offences are classified as "indictable"
Summary of the three rights
| Right | Description | Main source of right |
|---|---|---|
| Right to be tried without unreasonable delay | An accused is entitled to have their charges heard in a timely manner. Any delay should be reasonable. Whether a delay is reasonable depends on the facts of the case and surrounding circumstances. | Human Rights Charter (sections 21 and 25) |
| Right to silence | An accused has the right to remain silent when questioned or asked to give information during investigation. They also have the right to stay silent in criminal proceedings and not be required to give evidence or call particular witnesses. Generally, exercising this right cannot be used against them. | Common law and statute law (including the Evidence Act 2008) |
| Right to trial by jury | A person charged with an indictable offence is entitled to be tried by their peers. The jury comprises 12 members of the community. This right does not extend to people charged with summary offences. | Juries Act 2000 (for state indictable offences) and Section 80 of the Australian Constitution (for Commonwealth indictable offences) |
Exam guidance
When answering exam questions about the rights of an accused, remember to:
- Explain each right clearly, including what it means in practice
- Identify the legal source of each right (legislation and/or common law)
- Describe any exceptions or limitations to the right
- Use case examples to illustrate how rights are applied (such as Gray v DPP for unreasonable delay, or Weissensteiner for the right to silence)
- Analyse how these rights protect accused persons and contribute to a fair justice system
- Evaluate potential tensions between protecting individual rights and ensuring effective criminal justice processes
For evaluation questions, consider:
- The balance between protecting individual rights and ensuring public safety
- Whether current protections are adequate or need strengthening
- How rights might conflict (e.g., the right to a timely trial vs. the need for thorough investigation)
- The role of the community in criminal justice through jury trials
Key Points to Remember:
- Three key rights for accused persons: the right to be tried without unreasonable delay, the right to silence, and the right to trial by jury
- The Human Rights Charter is the main source of protection for the right to be tried without unreasonable delay
- The right to silence is protected by both common law and statute law, and prevents adverse inferences being drawn from an accused's silence
- The right to trial by jury applies only to indictable offences (not summary offences) and comes from different sources for state versus Commonwealth offences
- Unreasonable delay is not strictly defined but is assessed based on case complexity, number of accused persons, and availability of witnesses
- The only exception to the right to silence during investigation is the requirement to provide your name and address to police when requested
- A criminal jury consists of 12 members who must determine guilt beyond reasonable doubt