Australia

From Criminal Defense Wiki
Jump to: navigation, search

Contents

Introduction

Quick summary of the context (including the country's recent history)

Prior to European colonization in the late eighteenth century, Australia was inhabited by more than 750,000 Aboriginal people divided into 500 to 700 nations, each with their own languages, traditional systems of law and culture. In 1788, the British established a penal colony on the east coast of Australia. The British did not acknowledge Aboriginal people as sovereign land owners and failed to recognize their existing systems of culture and law. As a consequence, the British established colonies in Australia without negotiating any formal treaties with Aboriginal people, claiming that the land was 'terra nullius' or 'land belonging to no one.' The Commonwealth of Australia came into existence on 1 January 1901 as a federation of six states (New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia) and two territories (the Australian Capital Territory (ACT) and the Northern Territory). The Commonwealth of Australia is governed by a Constitution with each State and Territory developing its own constitution, parliaments, governments and law. Law-making powers are divided between the Commonwealth, State and Territory governments.

Australia's system of government is based on the Westminster system, characterized by constitutional monarchy; a separation of powers between the government, the judiciary and the executive; responsible government; and rule of law. The largely symbolic role of Head of State for Australia is the British Monarch, currently Queen Elizabeth II. The Australian head of government is the Prime Minister, who is the leader of the party or coalition that has majority support in the House of Representatives, one of two houses in the Parliament of the Commonwealth of Australia.

Australia has a common law system with law derived from three sources: legislation passed by parliament, common law and equity, both of which are based on previous judicial decisions. While the laws of the Commonwealth. States and Territories share many similarities and underlying principles, there are many distinctions between each jurisdiction. Unless otherwise specified, this summary will focus on defendants' rights and applicable laws in the State of Victoria.

Type of system

The common law system is characterized by the doctrine of precedent under which courts are bound by the past decisions of higher courts. While deeply entrenched in the common law tradition, some aspects of Australia's legal system exhibit civil law influences, such as the use of comprehensive codified legislation.

The High Court is the court of ultimate appeal in Australia and has the power to review the validity of Commonwealth legislation against the Constitution. The rest of the court hierarchy is divided into two main streams: the federal court system and state court systems. Each State has its own court hierarchy, but generally, States have local or magistrates' courts, district or county courts, and a Supreme Court, which is the highest court within the State or Territory.

In Victoria, the Magistrates' Court handles about 90% of all cases that come before Victorian courts.[1] In respect to criminal laws, the Magistrates' Court hears all less serious offences (known in all Australian jurisdictions as summary offences) and some more serious offences (known in all Australian jurisdictions as indictable offences) at first instance. The County Court is an intermediate trial court and has both civil and criminal jurisdictions. The County Court has jurisdiction to hear most indictable offences and is the court of first instance for numerous serious offences including drug offences, sex offences, driving offences and firearms offences.

The Supreme Court is the highest court in Victoria, and includes both a Court of Appeal and a Trial Division. The Trial Division hears the most serious criminal cases including treason, murder, attempted murder and other major criminal matters. These matters are heard before a judge and a 12-person jury. The jury is responsible for deciding the verdict of the case, and the judge must preside over the proceedings and impose the relevant penalty.

Legal aid in Australia

Each Australian jurisdiction provides legal aid in relation to matters which fall under the laws of that jurisdiction. State and Territory legal aid is funded largely via legal aid commissions in the relevant jurisdiction. From 2013 to 2014, more than 58,000 cases received legal aid in Australia[2] and approximately 140,000 cases received free legal advice. [3]

In addition to legal aid, the Commonwealth and most State and Territory governments also fund community legal centres, which are independent, not-for-profit organizations that provide legal services in the form of referrals, advice and assistance. Community legal centres have limited resources and need to make strategic decisions with respect to allocating these resources. In addition, there are a number of government funded initiatives and bodies that provide legal services to Aboriginal Australians.

Sources of rights

National sources

Australia's Constitution is mainly administrative in nature, and does not contain a bill of rights. It does, however, enshrine the separation of powers and the rule of law. As such, the Constitution provides certain protections, for example, by preventing the executive from exercising judicial power and ordering criminal detention without trial.

There are five explicit rights granted in the Australian Constitution. They are the right to vote, protection against acquisition of property on unjust terms, the right to a trial by jury, freedom of religion and freedom from discrimination on the basis of state residency. The High Court has also held that, on the basis of the Constitution, prisoners have the right to vote in the federal election.[4]

Victoria and the ACT are the only jurisdictions in Australia to have adopted human rights legislation (respectively, the Victorian human rights legislation and ACT human rights legislation),[5] requiring that specified human rights are taken into account in the creation, interpretation and application of state laws. Additionally, Victorian public authorities, including prison authorities, are obliged to respect the rights enshrined in the Victorian human rights legislation. Also, the Victorian human rights legislation enables individuals to seek relief or remedy (other than damages) in the event that their human rights have been infringed upon by an unlawful act or decision of a public authority.[6]

Additionally, common law and various acts and regulations provide legal protections for criminal defendants . Most States have general legislation on criminal procedures as well as specific rules and regulations that apply to different courts. Most States also have separate acts to deal with procedure in relation to child defendants.

International sources

Australia is a signatory to a number of relevant international treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention against Torture. However, Australian law requires that international obligations are incorporated into domestic legislation before they are binding and enforceable.

Australian courts may consider international law concepts and treaty obligations in:

  1. circumstances where there is a 'legitimate expectation' that the government intended to act consistently with treaty obligations (namely, where a treaty has been ratified);[7]
  2. order to resolve legislative ambiguity; or
  3. order to further develop Australian common law.

Pre-trial Procedures

Counter-terrorism

Apart from the police procedures outlined below, Australia has a comprehensive suite of counter-terrorism laws. They are focused on terrorist act offences, terrorist organizations and the prevention of the financing of terrorism. These laws provide unique powers to officers that are not reflected in the outline below. For example, the police can detain a person over the age of 16 years under a 'preventative detention order' if there is a threat of an imminent terrorist attack and if the order may prevent that attack. A person can be detained under such an order for a maximum of 48 hours under Commonwealth law,[8] and 14 days under State and Territory laws.[9]

There are particular rights which are afforded to a person subject to a preventative detention order, including the right to be treated humanely and not to be subjected to cruel, inhuman or degrading treatment, the right to contact a lawyer and family members, the right to an interpreter and the right to a copy of the preventative detention order containing a summary of the reasons for making the order.[10]

The police can also detain a person over the age of 16 years under a 'question and detention warrant' if there are reasonable grounds for believing that this will assist in the collection of intelligence in relation to a terrorism offence.[11] A person can be detained for a maximum of seven continuous days, but must be released at an earlier time if the questioning is finished.[12] As with preventative detention orders, particular rights are afforded to a person subject to a question and detention warrant, including the right to be questioned in the presence of an independent retired judge and certain limited rights to contact a lawyer or family members.[13]

Police procedures

Complaint/information

In New South Wales, any person with important information in relation to an indictable offence must report the information to a police officer.[14] While this exact obligation does not exist in other Australian jurisdictions, most do prohibit a person from accepting a benefit in exchange for not reporting a crime.[15]

Arrest, Search and Seizure Laws

(a) Stops and Frisks

In Victoria, a police officer can ask a person to provide their name and address if they have a reasonable belief that the person has committed an offence, is about to commit an offence, or may be able to assist with the investigation of a serious offence that has been committed.[16] The police officer must explain the nature of the suspected offence to the person and provide certain requested information.[17]

Most Australian jurisdictions allow a police officer to frisk somebody where that person is in a public place and if the police officer reasonably suspects that the person has illegal drugs; things that can explode or ignite; or guns or weapons such as knives. In some instances, a police officer can search somebody aged 14 years or older if there is a reasonable suspicion that the person has something that could be used to make graffiti such as spray paint. A police officer can also frisk someone if that person is in an area where there is a lot of violent crime.[18] A police officer who conducts a frisk search must be the same sex as the person being searched (if possible), make a written record of the search and give the person a receipt if any items that are taken. [19]

In December 2009, new search laws were introduced in Victoria which gave police the power to declare that a person in a 'designated area' could be searched if the area has a history of violence involving weapons, or if it is believed that an incident is going to take place.[20] Police do not need to have any reasonable grounds to suspect that a person is carrying a weapon, and can detain a person for as long as is reasonably necessary to conduct the search.[21] These laws are controversial when considered in light of the rights contained in the Victorian human rights legislation, particularly with respect to the right not to have privacy arbitrarily interfered with,[22] and the right to liberty.[23] The Victorian Government has recognized that the laws are partially incompatible with the legislation.[24] There is similar legislation in South Australia, Queensland and the Northern Territory that gives police the power to make "public safety orders" prohibiting specified persons or classes of persons from going to certain areas.[25]

In September 2014, new search laws were introduced in Queensland which provide that police can stop, detain and search a person without a warrant where they reasonably suspect that person is a participant in a criminal organisation.[26] These laws, along with earlier, less restrictive laws in South Australia and New South Wales, were introduced with the aim of restricting the activities of motorcycle gangs and other criminal organisations.[27]

(b) Searches

Police can search a person's bag or car without a warrant in generally the same circumstances that a frisk search can be carried out.[28] Police can search a house without a warrant, and may exercise reasonable force to enter the house if necessary, if they believe that there is somebody in the house that has committed a serious crime, or who has escaped from custody.[29]

(c) Arrests

A police officer can arrest a person and take them to a police station to be questioned if they hold a reasonable belief that the person has committed a crime,[30] where there is a warrant for the arrest[31] or when it is known to police that a person is a risk to a family member.[32] An ordinary citizen can also arrest any person committing an offence in order to preserve public order or for the safety and welfare of the public.[33] The Victorian human rights legislation requires that a person be informed of the reason that they are under arrest.[34]

Only reasonable (proportionate) force can be used by the police officer in conducting the arrest.[35] It is an offence for a person to resist arrest, punishable by up to five years imprisonment.[36] It is therefore best to co-operate with the police as much as possible.

Aside from the obligation to tell the police your name and address,[37] a person has the right to remain silent.[38] Police must inform the person of this right.[39]

The police must notify the Victorian Aboriginal Legal Service and any local Aboriginal Justice Panel if they have arrested an Aboriginal or Torres Strait Islander person. A person who is not an Australian citizen should tell police of this immediately, as non-citizens must be afforded the right to contact their consulate.[40]

(d) Pre-trial detention

After an arrest has been made, there is no specific limit to the time that a person can be detained and/or questioned. The law provides that a person must be released unconditionally, released on bail or brought before a judge within a 'reasonable time' of being taken into custody.[41]

The position differs for people who are suspected to have committed an offence under Commonwealth law. Offences under Commonwealth law include social security fraud, serious drug offences, people smuggling and terrorism. For non-terrorism related offences, police generally have a maximum of four hours to undertake their investigations. If the person appears to be under the age of 18, or is an Aboriginal or a Torres Strait Islander, the maximum time that the person can be held in custody is two hours.[42]

(e) Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures)

Each jurisdiction has various avenues through which a person can make a complaint about police conduct including State or Territory-based bodies, such as Victoria Police Professional Standards Command;[43] or Victorian Independent broad-based anti-corruption commission.[44] Commonwealth based complaints may be made to the Commonwealth Ombudsman. [45] A person who has suffered a wrong due to illegal police conduct may seek compensation through the commencement of civil action against the police.

Lineups and other identification procedures

(a) Lineups

There is no obligation to participate in a line-up.[46]

(b) Other identification procedures

There are different rules that apply to police procedures in obtaining fingerprints depending on the age of the person in custody.

If a person is at least 15 years of age, a police officer can use reasonable force to obtain the person's fingerprints, and if the officer believes on reasonable grounds that the person has committed a serious offence. The fingerprints must be destroyed after six months if the person has not been charged with an offence in that time, or if a court has found the person not guilty of the offence.[47]

If the person is under 10 years of age, fingerprints cannot be taken at all, and if under 17 years of age, the police must tape-record or video-record the fingerprinting. Also, if the person suffers from a cognitive disability or a mental illness, there must be an independent third person present when the fingerprints are taken.

Fingerprints cannot be obtained for less serious offences, such as littering. The police must apply for a court order to allow them to take a photo or a body sample against a person's will.

Interrogation

(a) Before formal charge in court

As noted above, aside from certain identifying information, a person has the right to say nothing to police. In New South Wales, this right to silence is qualified in relation to indictable offences. The court may draw an unfavourable inference if an accused fails to mention something to the police when questioned and later seeks to rely on this omission in court.[48] In Queensland, witnesses before the Crime and Misconduct Commission are liable to imprisonment for up to five years if they claim the right to silence and refuse to give evidence.[49] This penalty was introduced to ensure effective investigation into the criminal activities of motorcycle gangs and members of criminal organisations.

The police can ask a person in custody questions in relation to the offence for which they have been arrested. However, before the interview commences, the police officer must inform the person of their rights, including that the person does not have to say anything, and that the person is entitled to make two phone calls – one to a friend or relative, and another to a lawyer.[50] This is known as the police caution. There are two exceptions to the rule that a person in custody must be offered the right to speak to a friend, relative or lawyer: firstly, where the communication would result in the escape of an accomplice or the destruction of evidence; and secondly, where the safety of others causes the questioning to be so urgent that it should not be delayed.[51]

There are particular rights afforded to the person in custody in respect of the interview process. For example, access to an interpreter[52], the presence of a parent or guardian adult for persons under 18 years,[53] and the presence of an independent third person if the person being interrogated suffers from a cognitive disability or a mental illness.

If the police are questioning a person about a serious offence, the caution and the interview are required to be tape-recorded or video-recorded. The resulting recording and transcript must be provided to the person within 7 days.[54] A person can refuse to be video-recorded.

Questioning in relation to less serious offences such as minor driving offences, begging or being drunk in a public place do not need to be recorded.[55] The police officer can write down the questions asked, and any answers that have been provided. This information can then be used as evidence in court.

As noted above, a person can be held in custody and questioned for a period of time that is reasonable in all the circumstances,[56] although in New South Wales the maximum "reasonable" time is four hours within a 48 hour period.[57] If the police want to interview a person for a second time (for example, after they have been charged with an offence), they may do so provided the maximum time permitted for questioning did not expire in the first interview.[58] In some jurisdictions, the police must apply to an authorised officer if they want to extend the period of time for questioning.[59] For example, in New South Wales, a police officer may apply to the court for a detention warrant to extend the time for questioning beyond four hours and must satisfy certain criteria, including that the investigation is being conducted diligently and without delay and that circumstances exist that make it impracticable for the investigation to be completed within the permitted four hour timeframe.[60]

If the police want to interview a person held in custody who has been charged in relation to another matter, they must apply in writing to the court to do so.[61] The person must be brought before the court for the hearing of the application, and be given the opportunity to obtain legal representation. An audiovisual recording must be made of the giving of the police caution and the subsequent questioning.

(b) Enforcing the Rules (procedures to protect against illegal interrogation)

The Victorian Evidence Act 2008 provides the court with a discretion to exclude evidence of an admission if the admission was influenced by improper police conduct or if there were circumstances that may have adversely affected the truth of the admission. Commonwealth, ACT, NSW, Northern Territory and Tasmanian legislation contain similar provisions.[62] Further, a number of jurisdictions provide that evidence that was obtained 'improperly' or in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. The court may have regard to whether the impropriety or contravention was contrary to or inconsistent with a right recognized by the ICCPR. Finally, if, contrary to the law, there is no recording of an interview with a suspect in relation to a serious offence, any confession or admission made by the suspect can only be admitted in evidence if the court believes that there are exceptional circumstances that justify it being admitted.[63]

Right to Counsel

A police officer must inform a person under arrest that they have the right to make a telephone call to a lawyer.[64] Appropriate facilities must be provided to the person under arrest to enable them to make any telephone calls as soon as possible, and as far as possible, the communication should occur in a way such that it will not be overheard.[65]

Rights of the Accused at All Times

Criminal Law system

Double jeopardy

Double jeopardy is generally understood as the principle that a person should not be tried or punished twice with respect to the same, or a substantially similar offence. This principle has long been a feature of the common law in Australia[66] and is contained in legislation in various States and Territories.[67] Further, the Victorian and ACT human rights legislation includes the right not to be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law.[68]

However, the double jeopardy rule has now been modified in a number of jurisdictions in Australia by allowing for an accused who has been acquitted to be retried for the same offence in two instances; firstly, where the offence is very serious and fresh and compelling evidence is discovered; and secondly, where the acquittal was tainted, eg, where the accused bribed an official in the case.[69]

Legality principle

The Australian common law notion of the principle of legality provides that, unless clear words are used, the courts will not interpret legislation as abrogating or inhibiting fundamental rights or freedoms.[70]

Presumption of innocence

The presumption of innocence is a basic principle of Australian law that operates to impose on the prosecution the burden of proving the charge, and ensures that the accused cannot be presumed to be guilty until the charge has been proved beyond a reasonable doubt. The accused is therefore said to be 'innocent until proven guilty'.

Standards of proof and standards for conviction

The prosecution bears the legal burden of proving every element of the offence. The legal burden of proof on the prosecution must be discharged beyond reasonable doubt.[71]

Procedure with witnesses

An accused has the choice of whether to call a witness on his or her behalf. Generally, a party has the right to question any witness, though leading questions are not allowed. With the exception of expert witnesses, generally a witness can testify only as to what the witness did, what the witness heard or what the witness saw. The court has very broad powers to control the procedure regarding witnesses.[72]

Capital Punishment

The death penalty has been formally abolished in all Australian jurisdictions.[73]

Ex Post Facto punishment

In the absence of some clear statement to contrary, the courts generally assume that legislation is not intended to operate retrospectively.[74] The courts apply this presumption most strictly in relation to legislation creating a criminal offence because of the manifest injustice that the alternative approach would bring about.[75]

Fair Trial Rights

Freedom from prolonged pre-trial detention

Victorian criminal law requires that trial of a person for an offence must commence within 12 months after the day on which the person is committed for trial or if no committal proceedings have been held then 12 months after the day on which the indictment against the person is filed.[76] For sexual offences the equivalent time limit for commencing trial is 3 months.[77] The Victorian and ACT human rights legislation also afford a person charged with a criminal offence the minimum guarantee to be tried without reasonable delay.[78] Australia's counter-terrorism regime and immigration detention practices have been criticized on the basis that the period of detention provided for is often arbitrary, and therefore, in breach of the detainee's human rights.[79] Additionally, in certain cases, migration law may allow indefinite detention of persons seeking asylum in Australia.[80]

Freedom from punishment

Torture is criminalized in Australia, and acts of cruel, inhuman or degrading treatment are covered by a range of offences in existing Commonwealth, State and Territory legislation.[81]

Right to counsel

There is legislation in all Australian jurisdictions which extends the bare right to legal representation on an accused person facing trial for criminal offences.[82] In Victoria, a judge has the power to direct Victoria Legal Aid to provide representation to an accused in circumstances where the accused cannot afford a privately funded lawyer and where there cannot be a fair trial without legal representation.[83]

Right to habeas corpus

The right to a writ of habeas corpus is recognized in Australia as a 'basic protection of liberty.'[84]

Right to a fair trial

The right to a fair trial is one of the most fundamental attributes of the Australian common law system. Further, it is recognized as a human right in the Victorian and ACT human rights legislation.[85] There is no precise definition of a 'fair trial', which means that the court must consider relevant circumstances of each particular case.[86] Finally, there is specific legislation in each Australian jurisdiction which enshrines particular aspects of the right to a fair trial. For example, an accused is generally entitled to be informed of the charge against him or her, to an interpreter, to the provision of legal aid and to the right of silence.[87] An accused is also entitled to receive free of charge a copy of the charge-sheet from the informant or registrar and reasonable particulars of the charge.[88]

Right against selfincrimination

The common law recognises that a person cannot be compelled to provide evidence which incriminates them in a crime.[89] The scope of the right, however, is unclear. This is partly due to the fact that adverse inferences can sometimes be drawn from a defendant's failure to give evidence that could be assumed to be within the defendant's knowledge.[90] The Victorian and ACT human rights legislation also reflect this guarantee.[91]

Right to a speedy trial

The efficient and speedy conduct of criminal proceedings in Australia is largely a matter of case management in courts. The courts regularly update practice directions to increase efficiency of trials and other proceedings.

An accused may seek permanent stay on proceedings on the basis of unfairness resulting from undue delay.[92] The court's power to grant a stay on the proceedings is a discretionary power and in the past has required applicants to meet relatively high thresholds. Accordingly, exceptional circumstances may be required in order to obtain a permanent stay on the basis of undue delay during trial. The right to be tried without unreasonable delay is recognised as a human right under the Victorian and ACT human rights legislation.[93]

Right to a trial by jury / right to impartial judge

Section 80 of the Australian Constitution guarantees trial by jury of serious criminal offences. All of the States and Territories of Australia retain trial by jury for indictable offences. Summary offences are heard by the lower courts (for example, the Magistrates' Court in Victoria or the Local Court in New South Wales).[94] There is no provision for an accused to request a jury trial in relation to summary offences. Certain indictable offences (known as indictable offences triable summarily) can also be heard before a lower court with the consent of the accused.[95]

The Constitution also embodies a doctrine known as the 'separation of powers'. This doctrine has the effect of keeping judicial power separate from executive and legislative power. The result is that proceedings are resolved by courts and judges who are impartial and not subject to improper controls or pressures.[96]

Right to appeal

A convicted person in Australia has the legislative right to appeal against conviction or sentence, or both.[97] The Victorian and ACT human rights legislation also provide for this.[98]

Ways to protect rights

Exclusionary Rule or Nullity of Procedure

Generally speaking, evidence that is relevant will be admissible in a criminal proceeding. There are, however, a number of exclusionary rules that may prevent evidence from being admissible. Examples of exclusionary rules include the 'hearsay' rule and the 'propensity evidence' rule. Generally, hearsay evidence refers to a statement by a witness that a particular fact occurred, even though the witness did not actually observe the occurrence of that fact. The 'propensity evidence' rule is a common law rule that excludes evidence that tends to show that an accused has a disposition to act in a particular way.[99]

Civil Action

An accused may bring an action for negligence against the State in order to protect his or her rights. Each Australian State owes a common law duty to take reasonable care in relation to the safety of prisoners and individuals who are under arrest and in its custody.[100] An action for battery may also be brought if, for example, a police officer physically restrains a person for the purpose of effecting an arrest where that arrest was unlawful.[101]

Other legal options include making a complaint to an independent body such as the Victorian Ombudsman. An application to a Victims of Crime Compensation Tribunal may also be appropriate; however, any compensation obtained pursuant to an order by this Tribunal would not make the relevant police officers directly accountable for their actions. The Victorian human rights charter does not create a new right to begin legal action for a breach of human rights. Rather, it allows a person to raise human rights arguments along with other existing remedies or legal proceedings.[102]

Complaints procedures under the international human rights treaties

It is possible for an individual to make a complaint to the United Nations that their rights under a treaty have been violated by Australia, provided that Australia is a party to the treaty and has agreed to be subject to the relevant complaints mechanism.[103]

Rights in Prison

Conditions of confinement

The conditions of confinement in prison are regulated by the corrections legislation in each state. In Victoria, the corrections legislation and regulations contains specific regulations with regard to a number of prison management issues, including medical tests, searches, the use of firearms and access to visitors. Additionally, s 47 of the Victorian Corrections Act lists 14 prisoner rights, including with respect to provision of food and health care, clothing, practice of religion, complaints and participation in education programs. The Victorian human rights legislation also enshrines a number of rights relevant to Victorian prisoners, namely protections when deprived of liberty and otherwise involved in the legal system, including the right to be informed of the reason for arrest or detention, a right to apply to a court for a declaration or order regarding the lawfulness of detention, the right to humane treatment, the right to a fair hearing and the right of a person charged with a criminal offence to be presumed innocent until proved guilty.[104]

Most prisons in Australia are monitored by governmental or quasi-governmental bodies, and are therefore not exposed to regular independent oversight. Western Australia is the only State to have an independent prison watchdog, namely the Office of the Inspector of Custodial Services.

Immigrant detention

The Racial Discrimination Act 1975 (Cth) prevents discrimination based on race, color, descent or national or ethnic origin. Outside of the criminal law context, Australia's current migration policy requires asylum seekers who arrive by boat to Australia, including genuine refugees, to be detained in offshore detention centres while their applications are processed. The protections provided in the corrections legislation and other Australian laws do not apply to their detention.

As mentioned above, this may result in indefinite detention in certain limited circumstances.[105] Asylum seekers who have met the refugee criteria but whom the Australia Security Intelligence Organisation has classified as a security risk may be indefinitely detained if they cannot be resettled in another country. Given that ASIO does not usually provide reasons for the security risk classification, the classification decisions are generally not reviewable.

The Human Rights Committee has in some cases made rulings against Australia in relation to this issue but there are no legal mechanisms for the rulings to be enforced in Australia.

Right to medical care in custody

The Corrections Act provides the right for prisoners (including those taken into custody for questioning) to have access to reasonable medical care and treatment necessary for the preservation of health including, with approval and at the prisoner's own expense, a private registered medical practitioner, dentist, physiotherapist or chiropractor chosen by the prisoner.[106]

Mental health care

The Corrections Act provides mentally ill prisoners with the right to have reasonable access within the prison or, with approval, outside prison to special care and treatment for that illness. These costs are not covered by the government.

Restriction of rights

In Queensland, particularly harsh imprisonment conditions apply to convicted members of 'Criminal Motorcycle Gangs', including long periods of solitary confinement and restrictions on visitors and phone calls. This policy has been criticized by the Supreme Court of Queensland for being inconsistent with internationally recognized human rights.[107]

Since the terrorist attacks on 11 September 2001, the Australian Government has also introduced more than 40 new counter-terrorism laws. Persons charged under counter-terrorism laws are denied many procedural protections available to other types of criminal defendants.

Women's rights in prison

In recent years, areas of focus for women's rights in Australian prisons include provision of health services to pregnant women, practices of strip searching, culture of violence in prisons and employment of male prison officers.[108] Corrective services legislation and anti-discrimination laws may provide an avenue for women in prisons to protect their rights in relation to these issues. The Standard Guidelines for Corrections in Australia also provide some minimum standards which protect women's rights in prisons to the extent that they are implemented in each jurisdiction. These Guidelines represent a statement of national intent around which each Australian jurisdiction continues to develop its own range or relevant policies and legislation.

Court Procedures

Pre-trial

Charging Instrument

In Victoria, criminal proceedings may be commenced by:

(a) filing a charge-sheet (the most common method);
(b) direct indictment, filed by the Director of Public Prosecutions or the Crown Prosecutor; or
(c) through a court direction to be tried for perjury.

The filing of a charge-sheet is synonymous with laying an 'information' or filing a 'charge' in other jurisdictions. The purpose of a charge-sheet is to provide the court with information of the offence it will be required to consider, and to provide the accused with the information regarding the substance of the charge.[109]

Pre-Trial Motions

Steps prior to initial appearance Once a proceeding has been formally commenced by charge-sheet, it will be set down for a mention hearing (generally for less serious offences) or a filing hearing (for more serious offences). At these hearings, the Court will determine whether the case should be committed for trial. If the proceeding is commenced by direct indictment, pre-trial procedures will commence (such as directions hearings).

The court will generally have jurisdiction to hear the case if the offence was committed within the State or Territory court's jurisdiction or the offence is a federal offence.

The accused will receive a 'Notice to Appear' when the case is set down for a mention hearing, and a 'Summons' or 'Warrant to Arrest' for a filing hearing. This will indicate when and where the initial hearing will be heard. A Notice to Appear will require the accused to either attend or be represented by a person appearing on their behalf in court, whereas a Summons requires the physical attendance of the accused.

A failure to appear (through a representative, or in person) in response to a Notice to Appear may result in a warrant to arrest being issued, or the charge being heard in the absence of the accused.

The accused must be provided with a brief containing evidence available against the accused and other information relevant to the proceeding.

Pleas Prior to the initial court hearing (a mention hearing in the case of less serious offences or the committal hearing in the case of serious offences), an accused may choose whether to plead guilty (in which case sentencing will be the only issue considered by the court), or to plead not guilty (in which case, a full hand-up brief will be served and the proceedings will continue). In some circumstances, a guilty plea may not be accepted, which means that the earliest opportunity to plead guilty will be at the committal hearing.

Abuse of process / Stays It is important to note that, if an application for an abuse of process is to be made, it should normally be made as soon as possible prior to the prosecution commencing their case. Likewise, if an application for the trial to be stayed is to be made, this should be done swiftly. In general, a permanent stay may be granted if there is a fundamental defect which goes to the root of the trial and cannot be remediated by the trial judge.

Preliminary Hearing

The initial court appearance is where the court determines whether there is sufficient evidence for a case to proceed to trial. If the accused enters a plea of not guilty, the court may hear some evidence to determine whether there is sufficient evidence to support a conviction. If the court decides that there is sufficient evidence, the court will set down the case for trial. If no plea is entered, this will be treated as a plea of not guilty.

The court will also consider whether bail should be granted, or whether the accused should be remanded in custody.

Pre-trial evidence

Once an accused has been committed for trial, the prosecutor must provide a copy of the transcript of evidence and statements admitted in evidence at the committal, along with a transcript of any recording admitted in evidence and the accused must be given an opportunity to examine any exhibits.[110]

The informant or prosecutor has a continuous duty of disclosure in relation to any information in their possession if that information would otherwise have needed to be disclosed in a brief.[111] Where new information relevant to the proceeding comes into the informant's possession or to the informant's notice, the informant must provide the information to the relevant parties as soon as practicable.[112]

In Victoria, the police or a prosecutor may apply for a compulsory examination hearing, which will allow examination of a person or require a person to provide a document, prior to trial commencing. Although the accused may apply to cross-examine this person at the committal hearing, the accused does not have the right to do so.

Trial

Nature of the Trial

In Australia, trials usually take place in open court. Upon application, there are narrow circumstances in which a court may order a closed hearing, where it is necessary for the administration of justice.[113] Generally, defendants have the right to trial by jury.[114]

The adversarial nature of Australian court system means that parties are not required to disclose their cases prior to the trial. Despite this, many jurisdictions encourage discussion between parties prior to trial to resolve cases or narrow the issues in dispute.[115]

Defendant

The defendant may elect whether or not to give evidence during the trial. Generally, if the defendant is prepared to give their own evidence, this will occur prior to other witnesses.

Expert Witnesses

Expert evidence may be called upon to provide an opinion or explain certain facts that may arise from physical evidence, or to which an eye witness cannot attest (for example, DNA evidence). Experts must have specialized knowledge based on their training, study or experience and can only provide opinion evidence to the extent the evidence they adduce is based wholly or substantially on that knowledge.[116]

Judges

Generally, one sitting judge will hear a case during a trial at first instance. On appeal, one or three judges may hear the appeal. If the case is appealed again, to the High Court, up to seven judges may hear the case.

Victims

If an accused is found guilty, victims may have the opportunity to prepare and read a Victim Impact Statement in court. The Statement can contain information on how the victim was affected socially, emotionally, financially or physically by the crime committed by the defendant. Victim Impact Statements can help a judge or jury understand how the crime impacted the victim, and may be taken into account when determining a sentence.

Sentencing

There are a variety of sentencing options for Australian courts, including imprisonment; treatment / detention in a mental health service; drug treatment order; youth detention orders; and community correction orders.[117]

In Victoria, upon application by the accused, the court may provide an indication of whether a sentence of imprisonment is likely at any time after the indictment is filed.[118]

When determining an appropriate sentence, Victorian legislation requires the court to consider a number of circumstances including the gravity of the offence; the offender's culpability and previous character; and any other aggravating or mitigating factor.[119]

Appeals

Right to Appeal

A defendant may appeal the outcome of a criminal proceeding on a question of law, or against the conviction and the sentence, or the sentence alone. The prosecution may also appeal against the sentence imposed, or on the basis that the defendant failed to fulfil an undertaking to assist authorities. Leave to appeal may be required and is not automatically granted.[120]

The incompetence of a defendant's lawyer alone is not a sufficient basis to allow an appeal. The court hearing the application for appeal must focus on the consequences of the claimed incompetence and whether it led to a substantial miscarriage of justice.[121]

Other Grounds for Appeal

In some jurisdictions, there are limited opportunities for interlocutory appeals in relation to a decision made by a judge during or before trial. Interlocutory appeals may relate to a decision to rule key evidence inadmissible, or other important procedural decisions, such as the decision to discharge, or to refuse to discharge a jury.



References

  1. See 'Magistrate's Court of Victoria', available at https://www.magistratescourt.vic.gov.au.
  2. National Legal Aid, 'National Legal Aid Statistics' (February 2014), available at <http://lacextra.legalaid.nsw.gov.au/NLAReports/reportviewer.aspx?reportname=ApplicationStatus>.
  3. National Legal Aid, 'National Legal Aid Statistics' (February 2014), available at http://lacextra.legalaid.nsw.gov.au/NLAReports/reportviewer.aspx?reportname=LegalAdvice .
  4. Roach v Australian Electoral Commission and Commonwealth of Australia (2007) 233 CLR 162.
  5. Charter of Human Rights and Responsibilities Act 2006 (Vic), Human Rights Act 2004 (ACT).
  6. Charter of Human Rights and Responsibilities Act 2006 (Vic), s 39.
  7. Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.
  8. Criminal Code Act 1995 (Cth), s 105.14(6).
  9. For example, see Terrorism (Police Powers) Act 2002 (NSW), s 26K(2) and Terrorism (Preventative Detention) Act 2005 (Qld), s12(2).
  10. For example, see Criminal Code Act 1995 (Cth), ss 105.5A, 105.31, 105.33, 105.35, 105.37. For further information, see Attorney General's Department website, 'Australia's counter-terrorism laws': http://www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/Australiascounterterrorismlaws.aspx.
  11. Australian Security Intelligence Organisation Act 1979 (Cth), ss 34F. For further information see Attorney General's Department website, 'Australian Security Intelligence Organisation Act 1979': http://www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/AustralianSecurityIntelligenceOrganisationAct1979.aspx.
  12. Australian Security Intelligence Organisation Act 1979 (Cth) ss 34G(4), 34S and 34ZE.
  13. Australian Security Intelligence Organisation Act 1979 (Cth), ss 34G and 34H.
  14. Crimes Act 1900 (NSW), s 316(1).
  15. See the Crimes Act 1914 (Cth), s 44; Crimes Act 1958 (Vic), s 326(1); Criminal Code Act 1899 (Qld), ss 133; Criminal Code (WA), s 136; Criminal Code 1924 (Tas), s 102(1); Criminal Code Act (NT), s 104(1).
  16. Crimes Act 1958 (Vic), s 456AA(1).
  17. Crimes Act 1958 (Vic), ss 456AA(2) and 456AA(4).
  18. Victoria Legal Aid and Flemington and Kensington Community Legal Centre joint publication, 'Police powers: your rights in Victoria', July 2013: https://www.legalaid.vic.gov.au/find-legal-answers/free-publications-and-resources/police-powers-your-rights-in-victoria.
  19. Ibid
  20. Control of Weapons Act 1990 (Vic), s 10G(1).
  21. Control of Weapons Act 1990 (Vic) s 10G(4).
  22. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13.
  23. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 21.
  24. Hansard, 12 November 2009. Assembly Second Reading Speech. Summary offences and Control of Weapons Bill 4018-4024: http://www.parliament.vic.gov.au/downloadhansard/pdf/Assembly/Jul-Dec%202009/Assembly%20Extract%2012%20November%20from%20Book%2014.pdf.
  25. Serious and Organised Crime (Control) Act 2008 (SA) Part 4, Criminal Organisation Act 2009 (Qld) Part 4 and Serious Crime Control Act 2009 (NT) Part 5.
  26. Police Powers and Responsibilities Act 2000 (Qld) s 29(1A).
  27. See, for example, Serious and Organised Crime (Control) Act 2008 (SA) and Crimes (Criminal Organisations Control) Act 2012 (NSW).
  28. Victoria Legal Aid and Flemington and Kensington Community Legal Centre joint publication, above n 14.
  29. Crimes Act 1958 (Vic) s 459A(1) and (2).
  30. Crimes Act 1958 (Vic) ss 458 and 459.
  31. Crimes Act 1958 (Vic) ss 464X and 457.
  32. Victoria Legal Aid and Flemington and Kensington Community Legal Centre joint publication, above n 14.
  33. Crimes Act 1958 (Vic) s 458.
  34. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 21(4).
  35. Crimes Act 1958 (Vic) s 462A.
  36. Crimes Act 1958 (Vic) s 31(1)(b).
  37. Crimes Act 1958 (Vic) s 456AA.
  38. Crimes Act 1958 (Vic) s 464J.
  39. Crimes Act 1958 (Vic) s 464A(3).
  40. Crimes Act 1958 (Vic) s 464F.
  41. Crimes Act 1958 (Vic) s 464A(1).
  42. Crimes Act 1914 (Cth) s 23C(4).
  43. www.police.vic.gov.au – follow the ‘Compliments and complaints’ link.
  44. www.ibac.vic.gov.au – follow the ‘Report corruption or misconduct’ link.
  45. www.ombudsman.gov.au – follow ‘Making a complaints’ link.
  46. Victoria Legal Aid and Flemington and Kensington Community Legal Centre joint publication, above n 14.
  47. Crimes Act 1958 (Vic) s 464K.
  48. Evidence Act 1995 (NSW) s 89A.
  49. Crime and Misconduct Act 2001 (Qld) s 190.
  50. Crimes Act 1958 (Vic) s 464A and 464C; Police Powers and Responsibilities Act 2000 (Qld) s 418.
  51. Crimes Act 1958 (Vic) s 464C(1).
  52. Crimes Act 1958 (Vic) s 464D; Police Powers and Responsibilities Act 2000 (Qld).
  53. Crimes Act 1958 (Vic) s 464E.
  54. Crimes Act 1958 (Vic) s 464H(3); Police Powers and Responsibilities Act 2000 (Qld) ss 436-438.
  55. Crimes Act 1958 (Vic) s 464G and 464H.
  56. For example, see Crimes Act 1958 (Vic) s 464A; Police Powers and Responsibilities Act 2000 (Qld) ss 403 and 404.
  57. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 114-117. In Queensland, the maximum "reasonable" time is eight hours, although a person in custody may not be questioned for more than four hours: Police Powers and Responsibilities Act 2000 (Qld) s 403
  58. For example, see Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 114-117.
  59. For example, see Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 118 and Police Powers and Responsibilities Act 2000 (Qld) ss 405 and 406.
  60. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 118(5).
  61. Crimes Act 1958 (Vic) s 464B. The same process does not apply to a prisoner who consents to being questioned, however such a prisoner must not be removed from the prison or police gaol in which he or she is being held for the purposes of the questioning: see Crimes Act 1958 (Vic) s 464B(11) and 464B(12).
  62. Evidence Act 1995 (Cth) ss 84-85; Evidence Act 2011 (ACT) ss 84-85; Evidence Act 1995 (NSW) ss 84-85; Evidence (National Uniform Legislation) Act 2011 (NT) ss 84-85; Evidence Act 2001 (Tas) ss 84-85.
  63. Crimes Act 1958 (Vic) s 464H(2).
  64. Crimes Act 1958 (Vic) s 464C(1).
  65. Crimes Act 1958 (Vic) s 464C(2).
  66. Attorney General's Department website, 'Minimum guarantees in criminal proceedings': https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuidanceSheets/Pages/Minimumguaranteesincriminalproceedings.aspx.
  67. See, for example, Criminal Code (WA) s17; Criminal Code (Qld) s17; Acts Interpretation Act 1915 (SA) s 50.
  68. Human Rights Act 2004 (ACT) s 24; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 26.
  69. Bagaric, Mirko, Ross on Crime (Thomson Reuters, 6th edition, 2013), 588. See, for example, Criminal Procedure Act 2009 (Vic) Pt 7A, Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW) and Criminal Code (Qld) Ch 68.
  70. LexisNexis, Williams' Civil Procedure Vic (at Service 276 - January 2014) [8020.0]; see, also, Momcilovic v R (2011) [2011] HCA 34 at [444] per Heydon J.
  71. See, for example, Criminal Code Act 1995 (Cth) s 13.1 and 13.2 and Evidence Act 2008 (Vic) s 141; Evidence Act 1995 (NSW) s 141.
  72. Evidence Act 2008 (Vic) s 26.
  73. Death Penalty Abolition Act 1973 (Cth).
  74. Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ; Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194 per Fullagar J.
  75. R v Miah [1974] 1 WLR 683 at 694 per Lord Reid. In relation to retrospectivity, also see Sentencing Act 1991 (Vic) s 114 which provides that if an Act increases the penalty or the maximum or minimum penalty for an offence, the increase applies only to offences committed after the commencement of the provision effecting the increase.
  76. Criminal Procedure Act 2009 (Vic) s 211.
  77. Criminal Procedure Act 2009 (Vic) s 212.
  78. Human Rights Act 2004 (ACT) s 22(2)(c); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(c).
  79. Law Council of Australia, website, 'Immigration Detention and Asylum Seekers' <http://www.lawcouncil.asn.au/lawcouncil/index.php/current-issues/immigration-detention-and-asylum-seekers>
  80. Al-Kateb v Godwin (2004) 219 CLR 562.
  81. Attorney General's website, 'Prohibition on torture and cruel, inhuman or degrading treatment or punishment': https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuidanceSheets/Pages/Prohibitionontortureandcruelinhumanordegradingtreatmentorpunishment.aspx
  82. Thomson Reuters, The Laws of Australia (at 1 July 2011) [11.9.150]. See Judiciary Act 1903 (Cth) s 78; Crimes Act 1900 (ACT) s 285; Criminal Procedure Act 1986 (NSW) s 36; Criminal Code (NT) s 360; Criminal Code (Qld) s 616; Criminal Law Consolidation Act 1935 (SA) s 288; Criminal Code (Tas) s 368; Criminal Procedure Act 2009 (Vic) s 32; Criminal Procedure Act 2004 (WA) s 172.
  83. Criminal Procedure Act 2009 (Vic) s 197(3).
  84. Al-Kateb v Godwin (2004) 219 CLR 562 at [25] (Gleeson CJ).
  85. Human Rights Act 2004 (ACT) s 21; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24.
  86. LexisNexis, Halsbury's Laws of Australia (at Number 382 - January 2014) [80-1575].
  87. Thomson Reuters, The Laws of Australia (at 1 February 2012) [9.1.330].
  88. For example, see Criminal Procedure Act 2009 (Vic) s 32, Police Powers and Responsibilities Act 2000 (Qld), ss 382 and 387; Queensland Government website, 'Being Charged with an Offence:' http://www.qld.gov.au/law/sentencing-prisons-and-probation/being-charged-with-an-offence/.
  89. Thomson Reuters, The Laws of Australia (at 1 April 2008) [21.6.860].
  90. Ibid
  91. Human Rights Act 2004 (ACT) s 22(2)(i); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(k).
  92. Jago v District Court of New South Wales and Others (1989) 87 (ALR) 577. Also see Thomson Reuters, The Laws of Australia (at 1 May 2011) [11.6.510], [11.6.720].
  93. Human Rights Act 2004 (ACT) s 22(2)(c); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(c).
  94. For example, see Criminal Procedure Act 2009 (Vic) s 27, Criminal Procedure Act 1986 (NSW) s 7(1), and Justices Act 1886 (Qld) s 139.
  95. Criminal Procedure Act 2009 (Vic) ss 28 and 29(2).
  96. Attorney General's Department website, 'Fair trial and fair hearing rights:' https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuidanceSheets/Pages/Fairtrialandfairhearingrights.aspx
  97. Bagaric, Mirko, Ross on Crime (Thomson Reuters, 6th edition, 2013), p 111.
  98. Human Rights Act 2004 (ACT) s 22(4); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(4).
  99. Robert Wilson, 'Evidence: overview of the principles of relevance and admissibility' http://www.findlaw.com.au/articles/113/evidence-overview-of-the-principles-of-relevance-a.aspx.
  100. See eg Howard v Jarvis (1958) 98 CLR 177; New South Wales v Bujdoso [2005] HCA 76.
  101. Collins v Wilcock [1984] 1 WLR 1172 at 1178.
  102. http://www.humanrightscommission.vic.gov.au/index.php/the-charter#how-are-breaches-of-human-rights-addressed.
  103. http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/IndividualCommunications.aspx#proceduregenerale
  104. Charter of Human Rights and Responsibilities 2006 (Vic), Part 2.
  105. Al-Kateb v Godwin (2004) 219 CLR 562.
  106. Corrections Act 2009 (Vic), s 47(h).
  107. Callanan v Attendee X [2013] QSC 340.
  108. See Anti-Discrimination Commission Queensland, Women in Prison, 2006.
  109. John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508.
  110. Criminal Procedure Act 2009 (Vic), s 147.
  111. Criminal Procedure Act 2009 (Vic), s 111.
  112. Criminal Procedure Act 2009 (Vic), s 111.
  113. For example, see the circumstances listed in section 19 of the Supreme Court Act 1986 (Vic). Also see Russell v Russell (1976) 134 CLR 495.
  114. Australian Constitution 1901, s 80.
  115. See, for example, sections 37 and 54 of the Criminal Procedure Act 2009 (Vic).
  116. Evidence Act 2008 (Vic), s 79.
  117. See section 7 of the Sentencing Act 1991 (Vic).
  118. Criminal Procedure Act 2009 (Vic), s 207.
  119. Sentencing Act 1991 (Vic), s 5(2).
  120. For example, leave to appeal is required for appeals against convictions to the Victorian Court of Appeal: Criminal Procedure Act 2009 (Vic), s 274.
  121. R v Birks (1990) 19 NSWLR 677; Nudd v R (2006) 225 ALR 161; TKWJ v R (2002) 212 CLR 124; R v R [2008] SASC 35; R v Heeremans (2007) 249 LSJS 49).



See Criminal Justice Systems Around the World