Last updated 1 December 2020
Section 32 of the Human Rights Act 2019 (Qld) (Human Rights Act) specifically protects rights to a number of minimal procedural guarantees in criminal trials.
Subsection 32(1) states that all people charged with a criminal offence have the right to be presumed innocent until proven guilty. This right puts the responsibility on the prosecution to advance their case of wrongdoing beyond reasonable doubt.
Subsection 32(2) protects specific minimum rights to be afforded to accused persons, aiming to ensure they:
- are informed about the nature of and reason for the charge, in a language or other communication the person speaks or understands
- are given adequate time and facilities to prepare their defence and communicate with a lawyer they have chosen
- are tried without unreasonable delay
- are tried in person
- have the ability to access adequate legal representation, if eligible through legal aid, or choose to self-represent
- have been provided with the opportunity to obtain and examine witnesses
- have been provided with a free interpreter if they do not understand or speak English
- have been provided with free specialised communication tools, technology and assistance, if the person requires it
- are protected against self-incrimination.
Children charged with criminal offences are provided special consideration, with the right to a procedure that considers their age and the desirability of promoting rehabilitation contained in subs 32(3).
Additionally, the rights of people convicted of a criminal offence to appeal conviction and sentence is confirmed in s 32(4).
A person must be eligible for legal aid to access it. There is no obligation to grant legal aid beyond the discretionary power in the Legal Aid Queensland Act 1997 (Qld). There is also no absolute right for a person who is eligible for legal aid to choose a particular lawyer to provide assistance through the grant of aid.
The rights in criminal proceedings will be subject to the general limitation provision in s 13 of the Human Rights Act. This provides human rights may be subject under law to reasonable limits, which are justified in a free and democratic society. See ‘Human Rights may be Limited’ for further explanation.
The rights in criminal proceedings may be engaged:
- where there has been delay between a person being charged and going to trial for a criminal offence
- when considering an application for a permanent stay of an indictment where there has been a significant delay between an alleged crime being committed and the prosecution being commenced
- in a review of the decision to grant legal aid, although it is notable that in Victoria it has been held that a legal aid scheme that selects cases for assistance according to merit and selectively excludes other cases will not necessarily violate the right
- during an application for a judge-only trial.
These examples have been adapted from Australian cases. They are provided by way of example only, and are not a substitute for legal advice.