Within criminal law, you will often hear people talk about “the rights of the accused”. Whilst it might not seem fair to those who are victims of crime, the criminal justice system would not be robust as it is if there were no elements in place that ensured everyone who is charged with a crime gets a fair hearing or trial.

Australia is a signatory to several global human rights treaties, and some relate to the right of everyone to receive a fair trial and the presumption of innocence. The elements within these treaties that address these are minimum guarantees. Minimum guarantees represent minimum standards and core rights that anyone who is facing criminal prosecution has a right to. Here are the most significant ones.

To Be Informed Promptly Of The Charge

The intention behind this can be found in other minimum guarantees as they seek to ensure that everyone has the time to prepare their defence. In practical terms, it means they are told what law they are accused of breaking.

To Have Adequate Time And Facilities To Prepare A Defence And To Communicate With Counsel

Whilst the nature of each crime and the complexities of it mean it is improbable to stipulate an exact time frame for every trial, nevertheless, this speaks to the right of every accused to be able to defend themself against the charges against them. This prevents prosecutors from trying to rush a trial or a defendant not having time to gather evidence for their defence. It also allows the accused time to consult with their criminal lawyer.

To Be Tried Without Undue Delay

“Justice delayed is justice denied” is an oft used phrase, and that is what this minimum guarantee seeks to prevent. It refers not just to the start of the trial being timely but the length of it and the time it takes to come to a judgment either by the court or by a jury.

To Be Tried In Person

Everyone has the right to be present in court when they are on trial and thus should not be tried in absentia. Exceptions to this are permissible only if the accused has been given sufficient notice and opportunity to attend their trial but fails to.

To Legal Assistance And To Have Legal Assistance Assigned To The Accused, Where The Interests Of Justice So Require, And Without Payment If The Accused Is Unable To Pay For It

Whilst this does not give those without funds a blank cheque to hire anyone they choose, it at least allows for everyone to have legal representation whether they can afford it or not.

To Cross-Examine Prosecution Witnesses And To Obtain The Attendance And Examination Of Witnesses On Behalf Of The Accused On The Same Conditions As The Prosecution

With the legal principles such as the burden of proof on the prosecution and someone’s guilt must be beyond a reasonable doubt, the right to cross-examine prosecution witnesses and challenge the prosecution’s case including their evidence, are fundamental rights of everyone who faces trial in court.

To Be Free From Self-Incrimination

The right to ‘silence’ is a core right of anyone facing arrest, charges, or on trial. Further, should the accused refuse to give evidence that must not be considered to be adverse to their defence, nor an inference that they are trying to hide their guilt. Confessions shown to have been made under duress will be also be excluded from trials.