COMPARATIVE PERSPECTIVES ON THE FAIR TRIAL PRINCIPLE: A FLAWED BALANCE?

Simon H Bronitt1
This presentation will examine, from a comparative perspective, the fundamental right to fair trial. The paper challenges the traditional binary conception of the right to fair trial as being a balance between the state and the individual accused, an approach which tends to marginalise the interests of both victims and wider societal community interests. The presentation explores the potential of both domestic and international human rights law to embrace a different vision of justice through an examination of recent legal challenges to the fairness of laws aimed to ameliorate discriminatory practices in sexual offence proceedings, including challenges to tougher rape shield laws.

Introduction: The Fairness Principle A Flawed Principle? The right to a fair trial is protected by the common law and is recognised as a fundamental human right in the ICCPR, framed as a set of minimum guarantees attributed to the rights of a person accused of a crime. An express right to a fair trial came relatively late to the common law - in Australia, unfairness was simply a consideration which informed the scope of various evidential rules and procedural remedies until the High Court decisions of Jago (1989) and Dietrich (1992). In these two cases, the common law was prepared to acknowledge that unfairness at trial (caused by pre-trial delay or lack of legal representation) could impose a judicial obligation to halt criminal proceedings either temporarily or permanently. From a feminist and victims rights perspective, the concept of a fair trial has always been n exclusive two-sided affair. Reflecting the adversarial nature of our system of justice, the fair trial principle served to remedy structural disadvantages facing the accused, imposing on courts an obligation on ensuring a fair balance between the interests of the prosecution and the defence. Rules like the presumption of innocence are forensic attempts to equalise the adversarial contest interestingly, under international human rights law, these rules are said to maintain an equality of arms between the state and the accused.

Professor, Faculty of Law, ANU and Director, National Europe Centre. Email: simon.bronitt@anu.edu.au. Paper given at the National Forum, Peaceful Coexistence: Victims Rights In A Human Rights Framework, Rydges Capital Hill, Canberra, 16th November 2005.

The problem with this conceptualisation of fairness is that victims are not part of this picture: victims appear to have no special status beyond their position as potential witnesses for the prosecution.2 But it is important to appreciate that this exclusive bipolar image of justice (to borrow Professor Patricia Easteals phrase) is a relative latecomer to our system of criminal justice. Today the interests of prosecution are considered to be coextensive with those of the state. Legal history provides a somewhat different, more pluralistic system of criminal justice: while the state provided a public framework for doing justice (derived from and delivered in the name of the sovereign), the initiation of legal action was left to the private hands of citizens in the form of grand jury (which investigated the complaint and indicted to accused) and the victim as prosecutor or prosecutix. Public prosecution is a very latecomer to our system a common feature of the legal landscape in the 19th century was local prosecution societies, which paid for lawyers to prosecute on behalf of victims.3 In Australia, in the modern context, private prosecution is defunct and discouraged, even if heralded as constitutionally significant. The point being made here is that the common law can provide space for victim-representation, that it is not alien to our common law system, and that a wider range of societal interests that represent victim interests as well as broader public interests can be accommodated with our concept of fairness. This brief digression suggests that the model of justice as a battle between the accused and the state with the necessary marginalisation of the victim and wider community can be challenged historically. Ideas of fairness need not be viewed as static. In Dietrich v The Queen (1992) 177 CLR 292 (at 300 and 353), the High Court acknowledged that the right to a fair trial under the common law, by its nature, is an evolving concept incapable of exhaustive definition. Acknowledging its historical contingency, Gaudron J observed (at 364) that, what is fair very often depends on the circumstances of the particular case. Moreover, notions of fairness are inevitably bound up with prevailing social values And, just as what might be fair in one case might be unfair in another,
2 3

C Pollard, Victims and the Criminal Justice System: A New Vision [2000] Crim LR 5. In my sabbatical travels through America I discovered that some aspects of this private system survives in the criminal system, with District Attorneys in some states sharing the bar table with privately retained counsel representing the victim. Of course, this system of co-counsel is monopolised by private landowners and corporations (as victims of larceny).

so too what is considered fair at one time may, quite properly, be adjudged unfair at another. There is a wealth of academic material suggesting that victims and community interests must be considered in any calculus of justice recent developments in restorative justice institutions and development of new justice practices (such as conferencing) that interact with conventional criminal justice institutions might provide further impetus to reshaping our understanding of the fair trial principle. Having said that, one should not overstate the potential of restorative justice to reshape wider common law notions of the fair trial and alter traditional adversarial ideas of justice. The Crimes (Restorative Justice) Act 2004 contains the Acts objectives, placing clear limits on the Acts transformative potential beyond restorative justice settings. Section 6(1)(d) states its purpose, inter alia, is: to enable access to restorative justice at every stage of the criminal justice process without substituting for the criminal justice system or changing the normal process of criminal justice; (emphasis added) This suggests that the interpretive potential for developments like restorative justice to broaden our ideas of fairness and justice under common law might be limited. Contesting the Fair Trial Principle: The Case of Counselling Records Moving beyond the rather abstract terrain of definition and metaphor, I would like to illustrate the tensions around the fair trial through an examination of the special rules of evidence and procedure developed to deal with sexual offences specifically I will examine how perspectives on fairness differ from the standpoint of accused and the victim. In this context, it is clear that the forensic interests of the state as prosecutor and victims do not necessarily coincide. This touches on an area of research, now dated, that I undertook with Bernadette McSherry on counselling records. In the mid 1990s there was a spate of publicised cases in Canada and Australia where men accused of rape and sexual assault sought access to complainants confidential medical and counselling records.4 Prosecutors by and large did not resist these applications privacy interests tended to be secondary considerations; and in some cases, disclosure might even be considered supportive of the complainants credibility (and jury
4

For See T Henning and S Bronitt, Rape Victims on Trial: Regulating the Use and Abuse of Sexual History Evidence in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998), Ch 6.

sympathy). The furore led to feminist lobbying for legislative reform in NSW, and the creation of a new class of legally privileged or protected material.5 See for example Criminal Procedure Act 1986 (NSW), ss 297, 298. This provision has been replicated in other jurisdictions (with the exception of Queensland).6 These provisions intend to curb the excesses of defence fishing expeditions the provisions dealing with protected communications mean access to these confidential records now rests with the court. In some jurisdictions, including ACT, admission of these records is only permitted by court order; moreover, protection cannot be waived by either the counselor or the person counseled. In Tasmania, there is a further requirement that the disclosure can only take place with the consent of counseled person in other jurisdictions this is only a factor that is weighed in the balance. In these cases where the counseled person withholds consent to disclosure, this may generate an application from the defence that denying access to substantially relevant material document would lead to an unfair trial, and seek a stay of proceedings. Contesting the Fair Trial Principle: Rape Shields Laws Rape shield laws aim to limit humiliating and degrading cross-examination on the complainants sexual history and reputation, and have provided another field of contestation around the fair trial principle. From the 1970s onwards, reforms were adopted to limit the cross examination and leading of evidence related to the victims sexual history or reputation. In every jurisdiction, apart from New South Wales (NSW), legislation establishes a number of criteria that must be considered before the court may admit past sexual history evidence. In NSW, however, a more restrictive process applies, that states first the general rule that sexual history evidence is not admissible, subject then to a list of

See S Bronitt and B McSherry, The Use and Abuse of Counselling Records in Sexual Assault Trials: Reconstructing the Rape Shield (1997) Criminal Law Forum 259. A Cossin, Tipping The Scales in Her Favour: The Need to Protect Counselling Records in Sexual Assault Trials in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998), Ch 7. For an excellent research paper summarising the law in this area see Mary Heath, The law and sexual offences against adults in Australia Australian Centre for the Study of Sexual Assault (ACSSA), Issues No.4 June 2005. 6 It is interesting to note that the Australian responses and substantial body of academic scholarship on this topic have been influential overseas. Articles reviewing the controversy were cited by American courts to support the creation of new class of common law privilege for medical and therapeutic records in criminal proceedings: Trear v. Sills (1999) 69 Californian Court of Appeal 4th 1341.

exceptions. The court can only allow the evidence to be heard if it falls within one of these exceptions.7 The fair trial principle seems to get a particularly good workout in the sexual offences arena in other fields of criminal law that I have researched (such as police entrapment), the courts seem content to define and confine (if not entirely emasculate) the fair trial principle.8 In Canada, Australia and the UK, defence counsel have argued that rape trials should be permanently stayed on the ground that rape shield laws violate the accuseds right to a fair trial.9 Rape shield have survived such challenges in Australia (with courts simply deferring to parliaments supremacy in the absence of a constitutional bill of rights). In the United Kingdom, following the adoption of the Human Rights Act 1998, similar challenges have required more attentive consideration of the fair trial implications of these laws. These challenges were based on the right to a fair trial under Art 6 of the European Convention on Human Rights (ECHR). Invoking the obligation under the Human Rights Act 1998 (UK) to interpret legislation so as to conform to the ECHR, the House of Lords in R v A [2001] 3 All ER 1 interpreted the rape shield provision in s 43 of the Youth Justice and Criminal Evidence Act 1999 (UK) these provisions were largely modelled on the NSW Act. The House of Lords adopted a broad view of their interpretative obligation. The apparent bar on certain lines of questioning and adducing of evidence in the Act could not be viewed as absolute, with Lord Steyn holding that trial judges must interpret this apparent limitation as subject to an implied provision that any evidence or questioning which is required to ensure a fair trial under Article 6 of the convention should not be treated as inadmissible: at para 18. No doubt in the minds of some commentators and judges this strays beyond permissible limits of judicial interpretation into the realm of judicial vandalism (to coin Lord Binghams famous phrase), thereby violating both legislative intent behind the feminist reforms and the interpretative process sanctioned by Human

Mary Heath, The law and sexual offences against adults in Australia, Australian Centre for the Study of Sexual Assault (ACSSA), ISSUES NO.4 JUNE 2005 8 Delay in bringing the complaint is often the ground for challenge. A prosecution of a doctor for alleged sexual abuse of children patients was stayed on the grounds of the victims inexcusable delay: Geoffrey Davis v DPP (SC No 782 of 1994) discussed in P Easteal, Suppressing the Voices of Survivors: Sexual Exploitation by Health Practitioners (1998) 33(1) Australian Journal of Social Issues 211 at 222-227. 9 See T Henning and S Bronitt, Rape Victims on Trial: Regulating the Use and Abuse of Sexual History Evidence in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998), Ch 6.

Rights Act.10 The judicial development of an implied fair trial let out clause in this case to permit tendering of an otherwise suspect category of evidence and line of questioning in some generalised interests of justice can only do violence to the underlying protective function of the rape shield laws it may indeed signal a return to the former position where denigration of the complainants character and sexual past was a routine feature of rape trials. The function of rape shield laws is to prevent the discriminatory stereotyping of rape victims; to make judges scrutinise relevance claims and counteract the common tendency to allow evidence that is irrelevant (or remotely relevant) but highly prejudicial a point that has been made by successive empirical studies of these laws in the UK, Australia and elsewhere.11 Conclusion: A Holistic Vision of Justice and Fairness What is often absent in the judicial balancing exercise under these various laws is the identification of competing societal interests. The concept of the fair trial is not viewed from the perspective of the victim - such as a perspective would focus on issues of equality before the law, and the importance of remedying the structural and historical discrimination women have faced in making complaints of sexual violence. It is vital that concepts such as relevance are understood within the framework of the substantive laws. The substantive law continues to encode many discriminatory ideas for example through an emphasis on purely subjective models of fault and passive or implied notions of consent. Much reform tends to overlook the connection between the rules of evidence and the substantive law. In my mind, this is vital. As the Supreme Court of Canada in R v Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577 correctly concludes an accused does not have a constitutional right to adduce irrelevant evidence. Rules that limit access to counseling records and use of sexual history and reputation evidence challenge these stereotypes and myths rendering most not all - of this evidence simply irrelevant. More broadly, across the criminal justice system, there is a tendency to exclude the interests of victims, their families and the wider community. There is a commitment at the international level to improving the treatment of victims of crime, as evidenced by documents such as the United Nations, Declaration of Basic Principles of Justice for
Regina v Secretary of State for the Home Department (Respondent) Ex Parte Anderson (Fc) (Appellant) [2001] EWCA Civ 1698, para 30. 11 Department of Women (NSW), Heroines of Fortitude (1996); Department of Justice (Vic), Rape Law Reform Evaluation Project The Crimes (Rape) Act 1991 (1997).
10

Victims of Crime and Abuse of Power.12 In my view it is time to promote debate about how fairness can be understood holistically, to encompass a wider range of interests beyond those advocated by the state (narrowly defined as the public prosecutor) and the accused. While there has been some progress, feminist inspired law reform and consciousnessraising has not led to the change hoped for. As Celia Wells recently concluded in an essay reviewing feminist reforms, empirical research continues to demonstrate that a gendered understanding of criminal law and justice has yet to be fully realised.13

, GA Res 40/34, UN GAOR, 40th Session, Supp No 53, at 213, UN Doc A/40/53 (1985). This has resulted in the widespread adoption of victims charters, leading to compensation schemes and the introduction of victim impact statements at the sentencing stage 13 C Wells, The Impact of Feminist Thinking on Criminal Law and Justice: Contradiction, Complexity, Conviction and Connection (2004) Crim LR 503 at 515.

12