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  • Writer's pictureAidan Edgecomb

ANALYSIS: Fair trial and the right to legal representation

Although often taken for granted, the right to legal representation is a relatively new right in Australia.

The arrest of former US President Donald Trump last month shocked the political world. Regardless of his alleged actions and controversial history, he is still entitled to a fair trial under the sixth amendment of the United States Constitution. As explored in Common(wealth) Knowledge #39, Australia does not have an American-style bill of rights, which meant until just over 30 years ago the right to a fair trial, or at least the right to legal representation, was still contested in Australia.

It had always been custom for defendants to be forced to stand trial in all scenarios, even when they could not afford legal representation. Many concerns were raised about the fairness of this arrangement. One example of this was in 1978 with the case when the accused was convicted of rape and unlawful restraint by jury in the Supreme Court of Western Australia.

Without much money, he was forced to apply for state-provided legal representation, which was denied, as was his request to the judge for an adjournment of the trial, forcing him to defend himself. After making a failed case for a miscarriage of justice in the Court of Criminal Appeal, he went to the High Court of Australia with McInnis v The Queen. His case was ultimately dismissed, with a 4:1 majority ruling, with Justice Murphy dissenting, that legal representation for the accused is preferable, especially when charged with serious crimes, but not a legal right.

In 1986, Olaf Dietrich was arrested and charged for importation of heroin, a crime under the Customs Act 1901 (Cth). He originally requested legal representation for his trial from the Victorian Legal Aid Commission, and then the Victorian Supreme Court, with both claims being denied. Like McInnis, he attempted to have his Melbourne trial in the County Court of Victoria adjourned, a request which was promptly refused by the trial judge, citing that due to his financial situation he would be unable to secure legal representation, even with an adjournment. He was convicted after a 40-day trial and was sentenced to seven years imprisonment. His attempt to appeal the conviction in the Court of Criminal Appeal was unsuccessful, so he proceeded to the High Court of Australia with Dietrich v The Queen (1992).

Due to the precedent set in McInnes only 13 years earlier, Dietrich faced an uphill battle in his High Court challenge. He was aided however, by the ratification of the UN treaty International Covenant on Civil and Political Rights by Australia, which commits nations to respect citizen’s right to a fair trial. Unlike previous examples such as the Franklin Dam controversy where a UN treaty was codified into legislation, the ICCPR never was. Dietrich’s counsel argued the treaty is an “international which Australia is a party”, therefore arguing that it should be adopted into common law.

The Human Rights and Equal Opportunities Commission Act 1986 (Cth) was also instrumental in this case, establishing the Human Rights and Equal Opportunity Commission, now the Australian Human Rights Commission. The AHRC investigates complaints on potential human rights violations and Justice Toohey, who was part of the majority, concluded it also has the jurisdiction to investigate breaches of the rights laid out in the ICCPR.

The joint judgement by Chief Justice Mason and Justice McHugh clarified that the question before the court should not be a matter of whether the adjournment should have originally been granted, but rather whether not doing so constituted a miscarriage of justice. Based on evidence from Dietrich’s original trial, Mason CJ and Mc Hugh J believed he appeared “emotionally and psychologically overwhelmed.” This was supported by the ruling from a psychologist that determined him to be an “excitable, volatile person who would have great difficulty withstanding the rigours of a trial.” They deemed that due to this, the failure of the trial judge to adjourn resulted in an unfair trial, and concluded that, based on rights set out in the ICCPR, the right to a fair trial should be guaranteed. Only in exceptional circumstances could this right be overridden.

This view was shared by Justice Gaudron who referenced the clear disadvantage Dietrich faced due to his “lack of [legal] knowledge and … the stress of the occasion.” Gaudron J emphasised the possibility that an absence of legal representation could cause the accused to be improperly convicted. Based on this, she believed that in all criminal cases, legal representation is necessary for a fair trial to take place, and that courts should adjourn cases until representation is provided. This differs from the joint judgement’s ruling that a lack of legal representation does not necessarily lead to an unfair trial, whilst Gaudron J argued legal representation is essential to a fair trial in all scenarios, which the courts should guarantee.

Justice Deane, in a view shared by Gaudron J, believed that chapter three of the Australian Constitution protects the right to a fair trial. He stated “The fundamental prescript of the criminal law of this country is that no person shall be convicted of a crime except after a fair trial according to law.” This implies the High Court has a responsibility to ensure all trials are in accordance with the law, something that cannot be done if the trial is not considered 'fair.'

Justice Dawson disagreed, arguing that publicly funded legal representation would lead to an unrealistic idea of “perfect justice”, with legal representation being given to all those facing trial. He believed that lack of legal representation does not necessarily result in an unfair trial. Based on this judgement, he concluded that no miscarriage of justice occurred during Dietrich’s original trial.

The High Court argued 5:2 in favour of Dietrich, with the ruling of the majority being summarised by Justice Brennan, who dissented, at paragraph [2] of his judgment, where he said if “an accused person, charged with a serious offence and have insufficient resources to retain legal representation at his trial, wishes to be legally represented … the court should adjourn the trial until legal representation is available.”

Whilst this does not guarantee publicly funded legal representation for all those facing trial, it does ensure that when the state is unable or unwilling to provide legal representation, and the accused cannot afford their own legal representation the judge may be required to adjourn the case. This ruling pressures the government to provide adequate funding to ensure the courts run smoothly.

An example of this scenario was when John Howard’s Liberal government cut legal aid funding by 70 million. Attorney-General at the time, Daryl Williams, requested courts to be “realistic” about upholding the Dietrich principle, a move which was criticised by both the shadow Attorney-General and the President of the Law Council of Australia.

Whilst this case does raise questions about the definition of a “fair trial” and to what extent legal representation should be provided, it allows judges to make a decision based on each unique circumstance and was monumental in shaping the legal process in Australian society. As Australia does not have a constitutional right to a fair trial, if it were not for the implications resulting from Dietrich’s case, many would not have access to legal aid today.

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Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57.

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

McInnis v The Queen (1979) 143 CLR 575; [1979] HCA 65.


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