A common law right

8.12     The right to a fair trial is ‘manifested in rules of law and of practice designed to regulate the course of the trial’.^[11] Strictly speaking, it is ‘a right not to be tried unfairly’ or ‘an immunity against conviction otherwise than after a fair trial’, because ‘no person has the right to insist upon being prosecuted or tried by the State’.^[12]

8.13     Although a fair trial may now be called a traditional and fundamental right, clearly recognised under the common law, what amounts to a fair trial has changed over time. Many criminal trials of history would now seem strikingly unfair.

8.14     In his book, Criminal Discovery: From Truth to Proof and Back Again, Dr Cosmas Moisidis writes:

The earliest forms of English criminal trials involved no conception of truth seeking which would be regarded as rational or scientific by modern standards. The conviction of the guilty and the acquittal of the innocent were to be achieved by means which appealed to God to work a miracle and thereby demonstrate the guilt or innocence of the accused. No consideration was given as to whether an accused should be a testimonial resource or be able to enjoy a right to silence and put the prosecution to its proof. Instead, guilt and innocence were considered to be discoverable by methods such as trial by compurgation, trial by battle and trial by ordeal.^[13]

8.15     Even when the importance of trial by jury for serious crimes was recognised, trials remained in many ways unfair. In his Introduction to English Legal History, Professor Sir John Baker wrote that, for some time, the accused remained ‘at a considerable disadvantage compared with the prosecution’. The defendant’s right to call witnesses was doubted, they had no right to compel witnesses to attend court, and they rarely had the assistance of counsel.^[14]

8.16     There was also ‘little of the care and deliberation of a modern trial’ before the 19^th century, Baker writes:

The same jurors might have to try several cases, and keep their conclusions in their heads, before giving in their verdicts; and it was commonplace for a number of capital cases to be disposed of in a single sitting. Hearsay evidence was often admitted; indeed, there were few if any rules of evidence before the eighteenth century.^[15]

8.17     Baker describes the ‘unseemly hurry of Old Bailey trials’ in the early 19^th century and calls it ‘disgraceful’. The average length of a trial was a few minutes, and many prisoners would return from their trials not even knowing that they had been tried. He states that it is ‘impossible to estimate how far these convictions led to wrong convictions, but the plight of the uneducated and unbefriended prisoner was a sad one.’^[16]

8.18     Many of the most important reforms were made in the 19^th century. Those on trial for a felony were given the right to have a lawyer represent them in court in 1836; to call their own witnesses in 1867; and to give their own sworn evidence in 1898.^[17]

8.19     In X7 v Australian Crime Commission, Hayne and Bell JJ said that it was necessary to ‘exercise some care in identifying what lessons can be drawn from the history of the development of criminal law and procedure’.^[18] Even some fundamental features of the criminal trial process ‘are of relatively recent origin’.^[19] For example, now ‘axiomatic principles about the burden and standard of proof in criminal trials’ were not fully established until 1935, and it was ‘not until the last years of the nineteenth century that an accused person became a competent witness at his or her trial’.^[20]