A minor question but I'm confused (CRIME) (1 Viewer)

[Living_Legend]

One of my friends asked me this and i didnt know a straight answer. Is there a right to legal representation? I'm pretty sure that its not a full right (not in law or something?) but Im not sure how to word it properly. Any help?

 

[Ziff]

There is an implied limited right to legal representation due to Dietrich v. The Queen 1992 (High Court case).

Before that there was no right AT ALL to legal representation due to McInnes v. The Queen 1979.

 

[~*HSC 4 life*~]

One of my friends asked me this and i didnt know a straight answer. Is there a right to legal representation? I'm pretty sure that its not a full right (not in law or something?) but Im not sure how to word it properly. Any help?

it all falls under the natural law doctrine really uh ziff, we dont ned to know those cases do we? :/

 

[Ziff]

it all falls under the natural law doctrine really uh ziff, we dont ned to know those cases do we? :/

Well no...

You might be referring to 'natural justice' but in that the only requirement is that both parties be able to give their side of the story aka procedural fairness.

Natural law doctrine is simply that laws are created by a higher power - higher reasoning - the basis of today's human rights.

It's good to know the case studies but they're not a requirement - unless they make law and society the short answer this year. In such a case, a few case studies thrown around wouldn't be a bad idea.

 

[~*HSC 4 life*~]

sorry i meant natural justice, it's been a long day *sigh*

i'm leaving legal studying to the week before yay

 

[Ziff]

sorry i meant natural justice, it's been a long day *sigh*

i'm leaving legal studying to the week before yay

'Natural justice' is still only a right to have your side of the story heard, not a right to legal representation. There's an enormous difference.

 

[~*HSC 4 life*~]

'Natural justice' is still only a right to have your side of the story heard, not a right to legal representation. There's an enormous difference.

i thought it covered more than that, doesn't natural justice allow you to have a fair trial under certain conditions, not only to have your side of the story heard, but for the judge to be unbiased and i assumed, legal representation was implied for procedural fairness.

 

[Teoh]

No.

Dietrich vs Queen stated that there is an implied right to legal reputation.

To get legal aid, you need to pass the means and merit test, if you pass those, and aren't provided with legal aid you can appeal with what was ruled in Dietrich vs Queen.

 

[Ziff]

i thought it covered more than that, doesn't natural justice allow you to have a fair trial under certain conditions, not only to have your side of the story heard, but for the judge to be unbiased and i assumed, legal representation was implied for procedural fairness.

Natural justice relates to procedural fairness. The way in which the case is conducted is meant to be fair e.g. the decision maker must disclose their interests and biases (e.g. Dimes v. Grand Junction Canal 1852), the accused must be told of the allegations against them - particularly if they stand to lose their freedom or lose economically.

These days, however, the right to legal representation is seen as being a fundamental human right (at least internationally). The McInnes case denied that legal representation wasn't a right, but after we signed the First Optional Protocol to the ICCPR we came under more international scrutiny, after that, that's when the High Court made the Dietrich decision which gave it some bearing under our domestic laws.

It's still only IMPLIED and only in certain cases hence the legal aid merits and means testing.

 

[santaslayer]

The case only allowed for certain matters to be eligible criterion for legal representation, that is, serious indictable offenses. Most summary offence cases can still be heard without any proper legal advocacy. In other words, if you were to be charged with murder, than legal represenattion would be vital. No legal representation would be disastrous and possibly grounds for appeal. Something like a civil claim would usually be conducted without representation.


Natural justice consists of two important characterisitics. As HSC4LIFE has already pointed out, they involve the impartiality rule and the hearing rule. These rules require both an impartial judgement and also the right to be heard before condemmned. That is, if you were to be fired, the employer would be required to allow you to defend yourself against any alleged offences. That being done, you would also have the right to take the case to court...(unfair dismissal) whereby an impartial decision would be made.

Some areas of both natural justice and legal representation do overlap but are two independent notions.

 

[Teoh]

...Most summary offence cases can still be heard without any proper legal advocacy...

Summary offences aren't crime!!

 

[santaslayer]

Summary offences aren't crime!!

Um....

Yes they are. :uhhuh:

 

[Ziff]

RIGHT TO LEGAL REPRESENTATION

Legislation generally allows a person to be legally represented in court hearings, although in some tribunals, legislation may limit or prohibit legal representation. In criminal proceedings, an accused person has a right to legal representation (Criminal Procedure Act 1986, s 96). At common law, there is no right to be represented by a lawyer in court at public expense. However, there is a common law right to a fair trial. The High Court has interpreted this right to mean that if a person without financial resources is charged with a serious criminal offence, and the person does not have legal representation, the court should proceed with the trial only in exceptional circumstances.7 If a defendant or an accused person is not legally represented, it is the duty of the magistrate or judge to ensure that the person receives a fair trial.

 

[santaslayer]

Wow Asqy...7000+ posts...that's impressive...must catch up...