Case Explained: Right to Fair Trial for Serious Crime Accused – Legal Perspective

Australia’s legal protections matter most in the hardest cases.

When a community witnesses a public act of extreme violence, people often question the justice system. Why presume the alleged offender is innocent? And why give them a lawyer?

Associate Professor Helen Gibbon, a homicide prosecution expert from UNSW Law & Justice, says the answer reaches the core of Australia’s justice system.

She explains how our rights exist precisely for times when the hardest cases confront society and evoke the strongest public reactions.

Why are they presumed innocent?

“The presumption of innocence isn’t a glib expression that lawyers throw around,” says A/Prof. Gibbon. “It is a fundamental legal principle that underpins the entire criminal process.

“It exists to protect innocent people who have been falsely accused, and to ensure that people who did commit the crime are tried and convicted fairly, according to the law.”

The principle doesn’t mean the legal system believes the Bondi gunman, for example, is factually innocent.

The presumption of innocence means the prosecution has to prove that the accused is guilty of the charges laid against them, and also prove their guilt beyond reasonable doubt while following a fair process.

Isn’t it clear they committed the crime?

“There is much more to a criminal trial than the alleged facts,” says A/Prof. Gibbon.

“Even when the main facts aren’t disputed, courts often address critical legal questions to ensure the person accused stands trial in accordance with the law.”

For example, a trial could closely examine complex issues involving police procedures, evidence admissibility, charge appropriateness, and the accused’s mental state.

A/Prof. Gibbon says that courts must always apply legal and procedural rules strictly and scrutinise the evidence meticulously. But when serious offences pose a higher risk to an accused person’s liberty, this is even more important.

This can be extremely distressing for those involved in criminal trials concerning violent crime. Lawyers, magistrates, and judges who repeatedly assess traumatic material can suffer vicarious trauma.

“Considering police body camera footage taken at the scene, forensic photographs, autopsy reports… when there are many victims, or the victims are particularly vulnerable, such as children, even the most experienced lawyers will find this challenging.”

How do they even find a lawyer?

“The right to a fair trial is an essential part of any liberal democratic criminal justice system and a safeguard for society as a whole,” says A/Prof. Gibbon. “It’s not just for the wealthy.”

More than 160 community legal centres, such as Kingsford Legal Centre , provide free advice and services across Australia.

People facing serious criminal charges can seek representation through Legal Aid. When a case is serious and complex, Legal Aid solicitors will brief a barrister.

Barristers are highly specialised, independent lawyers who generally aren’t allowed to refuse a client. This principle, called the “cab rank rule”, helps ensure all defendants have legal representation, no matter how serious their alleged offence.

A/Prof. Gibbon says the cab rank rule has an exception.

“While barristers can reject a client, the reason must be legitimate, such as a conflict of interest or a lack of relevant expertise. Alleged unthinkable violence isn’t a legitimate reason.”

Solicitors, however, can decline a client for any reason. So why would any solicitor agree to defend them?

“A defence lawyer’s role is to assist the court, not to convince the public,” says A/Prof. Gibbon.

“Legal representation for the accused ensures that the prosecution’s case is properly tested.”

Testing the case is crucial. If the accused is acquitted, they generally can’t be tried again on the same charges. If convicted, they have the right to appeal their conviction and sentence.

In a nutshell…

“Criminal defence lawyers understand that representing an accused person is not sympathising with them or endorsing the alleged conduct,” says A/Prof. Gibbon.

“Rather, it is upholding the integrity of the justice system. Difficult cases raise complex legal issues that usually go beyond what a self-represented defendant could properly understand.”

A/Prof. Gibbon says society must have confidence in a legal system that delivers verdicts in accordance with the law.

“If we deny legal representation to people accused of serious crimes, we weaken the legal protections set up by the common law and legislature over centuries, which protect us all.”