Law in the Modern Times

Dietrich v The Queen Argued that there Is Immunity from conviction unless such a person In provided with counsel at the public expense. Mason C. J. And Brenan J. “The applicant is entitled to succeed because his trial miscarried by virtue of the judge’s failure to stay or adjourn the trial until arrangements were made for counsel to appear the public expenseћ. He was deprived of his right to a fair trial. ” “Indeed, where there is no legal representation, and save in the exceptional case of the skilled litigant, the adversary system, whether or not It remains in theory, in racist breaks down ” – Lord Devil.

There Is an argued analogy with the united States Constitution, however as It Is based on their Constitution It has no parallel In Australian law. Could create difficulties – egg. Accused could demand counsel of a particular degree, skill or experience. Lack of representation may mean that an accused is unable to receive, or not receive a far trial. Brenna J. Whilst dissenting, Brenna acknowledges: “The entitlement of a person charged with a serious offence to be represented by counsel at public expense would be an important safeguard of fairness in the administration of criminal justice.

Argues that our common law is different to other common law countries that have a Bill of Rights. “In the present case, there is no constitutional or statutory provision which supports the applicant’s case. ” “Every right or title must be enforced or administered in some form. ” Deane J. “The entitlement of an accused person to a fair trial according to law Is recognized as the central thesis of the administration of criminal justice. ” and right’ which subjects innocent men t increased dangers of conviction merely cause of their poverty. However, viewed in the context of the overall trial, impropriety or unfairness could not have infected the verdict in the sense that it could not have adversely influenced the final verdict which the accused was convicted. ” Dawson J. The Trial Judge addressing Jury “The fact is he unrepresented, and you should make whatever allowances you believe appropriate for that fact. ” “Entitlement to appear by counsel is not the same thing as entitlement to have counsel at the public expense. ” “If he is convicted, an appeal cannot succeed merely because he was at a equidistant in being unrepresented. “There cannot be a miscarriage of Justice merely because an accused in unrepresented when he has no entitlement to representation. ” Dietrich relied on Article 14(3)(d) of International Covenant on Civil and Political Rights: “To have legal assistance assigned to him, and without payment by him in any such case if he does not have sufficient means to pay for it. ” However Dawson J. Believes that the common law can hold a fair trial with an unrepresented accused. Robinson v The Queen Man accused and convicted of murder in Jamaica

Minority Judges dissented – found that accused had no defense counsel and a denial of such a right was sufficient to impair the trial. The UN Human Rights Committee responded to the trial of Robinson by stating that “the absence of counsel constituted an unfair trial. ” In the common law country of Canada, the Charter of Rights and Freedoms holds that in serious offences, counsel is essential for a fair trial. Deane J. “Central of our criminal law… That no person shall be convicted of crime otherwise than after a fair trial according to law. ” Gaudier J.

A trial is not necessarily unfair because it is less than perfect, but it is unfair if it involves a risk of the accused being improperly convicted. ” “What makes a trial without representation unfair is the possibility that representation might affect the outcome of the case. ” Miscarriage of Justice. Mason C. J. “By reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of Justice in that the accused as not been convicted without a fair trial.

Where an accused has no representation, proceedings should be adjourned to enable accused to find counsel. Paragraph issue? If the trial proceeds without a defense counsel, and the accused is convicted, the conviction will almost certainly be quashed. The notion that a trial Judge may be able to give helping hand to accused is illusory and bound to cause problems in course of trial. No Judges prepared to fashion a constitutional right to state-funded counsel. Murphy J. Is McGinnis: “Putting aside an accused to trial in a serious case is barbarous.