U3AOS1 Topic 3: The rights of an accused

Study design dot point: The rights of an accused, including the right to be tried without unreasonable delay, the right to silence, and the right to trial by jury.

Preface:

This topic is a very straightforward one. Typical questions involve identifying, outlining, describing or explaining the rights of an accused. This can be in reference to a stimulus. Note that, in some cases, certain rights do and do not apply. Thus, it is paramount to understand when these provisions are applicable and when they are not; otherwise, you may discuss a specific right that isn’t applicable to the question. In the 2024–2028 3/4 Legal Studies study design, these rights ARE NOT going to be assessed in relation to the principles of justice. That is, you cannot be asked how something like the right to be tried without unreasonable delay directly upholds fairness.

The three rights of an accused:

- The right to trial by jury.

- The right to be tried without unreasonable delay.

- The right to silence.

The right to trial by jury:

- All accused persons charged with an indictable offence who plead not guilty are eligible to have a jury present at their trial. A jury is composed of members of the community selected from the electoral roll.

- This right only applies for indictable offences (where the accused pleads not guilty). There is no right to trial by jury for an accused charged with a summary offence (there is no jury in the Magistrates' Court).
- This right is protected by the Criminal Procedure Act 2009 (Vic).
- Juries Act 2000 (Vic) mandates that there are to be 12 jurors present in a jury for Victorian indictable offences.

Note: Section 80 of the Australian Constitution mandates that a jury is to be present for Commonwealth indictable offences only, not for Victorian indictable offences. Do not mix these up. 

The right to be tried without unreasonable delay:

- All accused persons are entitled to have their case resolved in a timely and efficient manner without 'unreasonable delay'. If a delay occurs, it should be considered a 'reasonable delay'. The reasonableness of a delay depends on various factors, such as the complexity of the criminal case.
- This right is protected by s 21(5) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

- This right is 'without discrimination'. That is, all accused persons are eligible for it.

The right to silence:

- An accused is entitled to the right to silence, which means that a person can remain silent when questioned or asked to provide information (except in certain cases), and the accused's choice to exercise this right cannot be seen as an admission of guilt. That is, no negative inferences can be drawn from it.

- This right is protected by both common law and statute law, particularly under the Evidence Act 2008 (Vic).

- A person cannot exercise their right to silence in certain cases, such as when an individual is asked to provide their name and address by the police. 

Note: The laws that protect these rights specifically do not need to be memorised, but doing so can help improve your response. As outlined in the key skills section, the use of legal terminology is an important skill. Referring to specific legislation, such as statutes protecting these rights, can help strengthen your use of legal terminology.