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s25 – Rights in Criminal Proceedings
Grand Chamber considers whether testimony of absent witness violates fair trial right Al-Khawaja and Tahery v United Kingdom – 26766/05 [2011] ECHR 2127 (15 December 2011) Summary The Grand Chamber of the European Court of Human Rights recently considered the admissibility of statements made by an absent witness and the application of the ‘sole or [...]
Admissibility of unsolicited statements made in a police interview Jude v Her Majesty’s Advocate (Scotland) [2011] UKSC 55 (23 November 2011) Summary In this case, the Supreme Court of the United Kingdom held that admitting evidence of unsolicited statements made to the police by an accused who had waived his right to access legal advice [...]
Legal advice not essential before a detainee can be taken to have validly waived the right to legal advice McGowan (Procurator Fiscal, Edinburgh) v B (Scotland) [2011] UKSC 154 (23 November 2011) Summary In this case, the Supreme Court of the United Kingdom held that it is not necessary for an accused in custody to [...]
Proceeds of crime and the presumption of innocence Gale & Anor v Serious Organised Crime Agency [2011] UKSC 49 (26 October 2011) Summary Approximately £2 million worth of property was confiscated from the appellants, on the basis that it was the fruit of drug trafficking, money laundering and tax evasion. Under Article 6(2) of the [...]
Supreme Court of British Columbia refuses to admit evidence obtained in breach of Charter rights R v Nakamura, 2011 BCSC 1443 (26 October 2011) Summary This case concerns a voir dire ruling made by the Supreme Court of British Columbia to exclude from the proceedings an incriminating statement made by one of the two accused [...]
High Court affirms constitutionality of Charter and considers key interpretative provisions Momcilovic v The Queen [2011] HCA 34 (8 September 2011) Summary The High Court’s decision in Momcilovic v The Queen upholds the constitutional validity of the Charter of Human Rights and Responsibilities Act 2006 (Vic). However, the six separate judgments provide varied guidance as [...]
Canadian Appeal Court considers scope of the right to legal counsel R v JWC, 2011 ONCA 550 (10 August 2011) Summary This is an unusual criminal law case in which the only evidence against the defendant, JWC, was a statement he made to police in which he confessed to numerous sexual assaults of a number [...]
Right to fair trial without unreasonable delay R v Kara Lesley Mills [2011] ACTSC 109 (1 July 2011) Summary In R v Kara Lesley Mills [2011] ACTSC 109 (R v Mills), the ACT Supreme Court delivered an important judgment concerning the right to a fair trial in criminal proceedings with a particular focus on circumstances [...]
Human Rights Interpretation and Reverse Onus Provisions: Is a Human Rights-Compatible Interpretation ‘Possible’?” Webster v R [2010] EWCA Crim 2819 (01 December 2010) The recent decision of the England and Wales Court of Appeal in Webster v R provides guidance concerning: the interpretation of the right to a ‘Fair Hearing’ under s 24 of the [...]
The Relationship between the Victorian Charter and Confiscation of Property DPP v Ali & Anor (No 2) [2010] VSC 503 (10 November 2010) The Supreme Court of Victoria (Hargrave J) recently considered the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in relation to an application to forfeit a family home [...]
The Use of the Victorian Charter in Criminal Interlocutory Proceedings Wells v The Queen (No 2) [2010] VSCA 294 (4 November 2010) The Court of Appeal dismissed this interlocutory criminal appeal. The applicant in part sought a permanent stay of a criminal trial on the basis that the Charter rights relating to criminal proceedings (ss 24 [...]
Right to Lawyer Pre-Questioning: Admissions by Detained Suspect with Legal Representation are Incompatible with Right to Fair Trial Cadder v Her Majesty’s Advocate (Scotland) [2010] UKSC 43 (26 October 2010) The United Kingdom Supreme Court has overturned convention and UK precedent by holding that admissions made by a detained suspect prior to charge, without legal [...]
Balancing the Right to a Fair Hearing and the Right to Religion: Canadian Court Considers Wearing of Veil in Criminal Proceeding R v NS, 2010 ONCA 670 (13 October 2010) The Ontario Court of Appeal recently handed down a significant decision regarding the conflict between the constitutional rights of a witness in a criminal proceeding [...]
The Right to a Fair Hearing within a Reasonable Time McFarlane v Ireland [2010] ECHR 1272 (10 September 2010) In a decision of the Grand Chamber of the European Court of Human Rights, Ireland was held by twelve votes to five to be in breach of the right to have a hearing within a reasonable [...]
States Have Obligation to Prevent and Address Gender-Based Stereotyping Vertido v The Philippines, UN Doc CEDAW/C/46/D/18/2008 (1 September 2010) The Committee on the Elimination of Discrimination against Women has held the Philippines in violation of its obligations under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women to [...]
Threat of Torture during Interrogation Amounts to Inhuman Treatment Gafgen v Germany [2010] ECHR 759 (1 June 2010) The Grand Chamber of the European Court of Human Rights has found, by majority, that a threat of torture amounted to inhuman treatment, but was not sufficiently cruel to amount to torture within the meaning of the [...]
‘Deeming’ Traffic Offences Breaches Right to Presumption of Innocence and Silence Krumpholz v Austria [2010] ECHR 341 (18 March 2010) In Krumpholz v Austria, the European Court of Human Rights held that deeming the owner of a vehicle to have committed a traffic offence (by virtue of their ownership of the vehicle) breaches the European [...]
Court of Appeal Makes Declaration of Inconsistent Interpretation and Considers Statutory Interpretation and Limitations on Rights under the Charter R v Momcilovic [2010] VSCA 50 (17 March 2010) In a landmark decision, the Victorian Court of Appeal has unanimously held that: s 32(1) of the Charter is not a ‘special’ rule of statutory interpretation, but [...]
Right to Liberty and Security and the Police Use of Force: Excessive Use of Force Results in Reduction of Sentence R v Nasogaluak, 2010 SCC 6 (19 February 2010) The Canadian Supreme Court has held that the excessive use of force by police officers in conducting an arrest was a breach of the accused’s right [...]
Legality of Detention Pursuant to Prisoner Transfer Agreement when Original Trial Unfair Orobator v HMP Holloway & Anor [2010] EWHC 58 (Admin) (20 January 2010) In this case, the England and Wales High Court rejected a British citizen’s challenge to her detention in the UK after being convicted of drug offences in Laos. While the [...]
UK Supreme Court Considers whether the Right to a Fair Hearing Requires the Availability and Examination of Witnesses R v Horncastle & Ors [2009] UKSC 14 (9 December 2009) The new UK Supreme Court (replacing the House of Lords) has delivered an important judgment concerning the role of hearsay evidence; in particular, evidence adduced from [...]
The Right to a Fair Hearing and the Privilege Against Self-Incrimination under the Victorian Charter Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 (7 September 2009) In a landmark decision for the operation of the Charter of Human Rights and Responsibilities, Warren CJ of the Supreme Court of Victoria, [...]
Unreasonable Delay in Criminal Proceedings: Supreme Court of Canada Holds 30 Month Delay Unconstitutional R v Godin, 2009 SCC 26 (CanLII) (4 June 2009) The Supreme Court of Canada upheld an appeal for a stay of proceedings where there was a delay of 30 months between the accused being charged and brought to trial. The [...]
Right to Legal Aid and a Lawyer of One’s Choice Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48 (12 May 2009) The ACT Supreme Court has ruled that there is no absolute right for a legally aided person to choose their own lawyer. This case was the first application made under amendments to the [...]
House of Lords considers Right to Fair Hearing and Presumption of Innocence in Context of Confiscation Orders R v Briggs-Price [2009] UKHL 19 (29 April 2009) The House of Lords has unanimously held that a confiscation order can be validly made on the basis of matters established by evidence at trial, but in relation to [...]
Courts and Tribunals Directly Bound by Charter Rights De Simone v Bevnol Constructions and Developments Pty Ltd (2009) (Unreported, Supreme Court of Victoria, Court of Appeal, Neave JA and William AJA, 3 April 2009) The Court of Appeal held that courts and tribunals are bound by ss 24 (right to a fair hearing) and 25 [...]
The Treatment of Delay under the Bail Act post-Charter: Is Change Required? DPP (Cth) v Barbaro [2009] VSCA 26 (3 March 2009) The Victorian Court of Appeal has considered whether the enactment of the Charter necessitates a change to the treatment of delay under the Bail Act 1977 (Vic). Facts The appellant, Pasquale Barbaro, was [...]
The Supreme Court of Victoria considered that the Medical Practitioners Board of Victoria was a public authority as well as a tribunal under s 4 of the Charter. The Court held that the Board did not breach a medical practitioner’s right to be presumed innocent in disciplinary proceedings determining his capacity to practice medicine. Detailed [...]
In this case, the House of Lords held that the use of anonymous witnesses prevented the accused from adequately examining his accusers, and thereby denied him a fair trial in accordance with both the common law and art 6(3)(d) of the European Convention on Human Rights. Further, the House of Lords held that a conviction [...]
Supreme Court of Victoria Considers Right to Legal Counsel under Charter of Human Rights – ss 6, 7, 4, 25, 49(2). Detailed case note. The full text decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2007/2.html.
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