Rights of the Accused

Overview

In the Victorian criminal justice system, accused persons are afforded specific rights to ensure fairness and justice. These rights aim to protect individuals from potential abuses of power by the state and to uphold the principles of justice: fairness, equality, and access. The rights of an accused that are required knowledge for the VCE Legal Studies Study Design include:

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

REMEMBER: Use the acronym ‘DJs’ to help remember the three rights: Delay, Jury, Silence.

1. The Right to be Tried Without Unreasonable Delay

Definition

The right to be tried without unreasonable delay ensures that an accused person has their case heard in a timely manner. This right is protected by Section 21(5) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Section 21(5) Charter of Human Rights and Responsibilities Act 2006 (Vic): “A person charged with a criminal offence has the right to be tried without unreasonable delay.”

Rationale

This right seeks to minimize the stress, anxiety, and uncertainty experienced by an accused person awaiting trial. It also ensures that evidence and witness testimonies remain fresh and reliable.

Determining “Unreasonable” Delay

What constitutes an “unreasonable” delay is determined on a case-by-case basis. Courts consider various factors, including:

• Length of the delay: A longer delay is more likely to be deemed unreasonable.
• Reasons for the delay: Delays caused by the prosecution’s lack of preparation or deliberate stalling tactics are more likely to be unreasonable.
• Complexity of the case: Complex cases involving extensive evidence or numerous witnesses may justify longer delays.
• Number of offences committed: A case with multiple charges may require more time for preparation and investigation.
• Impact on the accused: The extent to which the delay has prejudiced the accused’s ability to present a defence.

Factors that may be considered by a court to determine if the delay was ‘unreasonable’, as established in R v Upton
1. Length of the delay
2. Reasons for the delay
3. Complexity of the case
4. Number of offences committed

Example

In R v Upton [2005] ACTSC 52, the court outlined several factors to consider when determining whether a delay is unreasonable.

Impact on Principles of Justice

• Fairness: Undue delays can prejudice the accused’s ability to present a defence, undermining the fairness of the trial.
• Access: Lengthy delays can create barriers to accessing justice, particularly for accused persons with limited resources.

KEY TAKEAWAY: The right to be tried without unreasonable delay ensures timely justice, reducing stress on the accused and maintaining the reliability of evidence. The determination of what is “unreasonable” is context-dependent.

2. The Right to Silence

Definition

The right to silence is a common law right that allows a person to remain silent when questioned or asked to supply information by a person in authority. An accused person’s choice to not speak during questioning or in court cannot be viewed as a sign of guilt.

Rationale

This right stems from the principle that the prosecution bears the burden of proving the accused’s guilt beyond a reasonable doubt. Accused persons are not obligated to assist the prosecution in building a case against them. It also protects against self-incrimination.

Scope of the Right

An accused can exercise the right to silence at any time, including:

• When being arrested or questioned by law enforcement.
• During a trial, by choosing not to testify or answer questions.
• When confronted by law enforcement at the time of an arrest or when being accused of committing an offence.
• In a court of law, meaning an accused can choose to remain silent instead of defending themselves against the prosecution or answering their questions.

Limitations

While the right to silence is a fundamental protection, there are some limitations:

• Adverse inferences: In some limited circumstances, a court may draw an adverse inference from the accused’s silence, but only if there is other evidence against them.
• Statutory exceptions: Certain statutes may compel individuals to provide information in specific circumstances (e.g., providing a driver’s license to a police officer).

Impact on Principles of Justice

• Fairness: The right to silence protects against self-incrimination and ensures the prosecution proves its case independently.
• Equality: The right to silence helps to level the playing field between the accused and the state, particularly for vulnerable individuals.

EXAM TIP: When discussing the right to silence, be sure to explain its purpose in protecting against self-incrimination and upholding the presumption of innocence.

3. The Right to Trial by Jury

Definition

A person charged with an indictable offence is entitled to be tried by their peers. The jury will be made up of 12 members of the community. The right does not extend to people charged with summary offences.

Source of the Right

• Section 80 of the Australian Constitution: Guarantees the right to a jury trial for Commonwealth indictable offences.
  > > Section 80 Australian Constitution: “The trial on indictment of any offence against any law of the Commonwealth shall be by jury…”
• Juries Act 2000 (Vic): Governs the operation of juries in Victoria for state offences.

Rationale

Trial by jury is seen as a cornerstone of the criminal justice system for several reasons:

• Community involvement: It allows ordinary citizens to participate in the administration of justice.
• Impartiality: A jury of peers is considered more likely to be impartial than a single judge.
• Transparency: Jury deliberations are conducted in secret to protect jurors from outside influence, but the verdict is delivered publicly.
• Checks and balances: It acts as a check on the power of the state.

Indictable vs. Summary Offences

• Indictable offences: More serious offences (e.g., murder, rape, armed robbery) that are generally tried in the County Court or Supreme Court. These offences carry the right to a jury trial.
• Summary offences: Less serious offences (e.g., traffic violations, petty theft) that are typically heard in the Magistrates’ Court. There is no right to a jury trial for summary offences.

Jury Composition and Selection

• A jury in Victoria consists of 12 jurors.
• Jurors are randomly selected from the electoral roll.
• Potential jurors can be challenged (“challenged for cause” or peremptory challenges) to ensure an impartial jury.

Impact on Principles of Justice

• Fairness: Trial by jury promotes fairness by ensuring that the accused is judged by their peers.
• Equality: The jury selection process aims to ensure that the jury is representative of the community, promoting equality.
• Access: The right to trial by jury enhances public confidence in the justice system and provides a mechanism for community participation.

STUDY HINT: Create a table comparing the three rights of the accused, outlining their definition, rationale, source, and impact on the principles of justice. This will help you consolidate your understanding and prepare for exam questions.