Criminal Process and Human Rights

This book is a comprehensive guide to the impact of human rights law upon Australian criminal process. Increasingly, the law of Australian criminal process is being moulded by human rights instruments. The Human Rights Act 2004 (ACT) and the Victorian Charter of Human Rights and Responsibilities 2006 have altered significantly Australian criminal process requirements. In addition they have provided an indication of the potential (and, at times actual) impact across the country of the International Covenant on Civil and Political Rights (the ICCPR).

This book is a commentary from a criminal justice perspective upon this legislation and its analogous international models. Its informed analysis of key criminal process issues is thematically structured:

arrest, detention and bail in the context of the right to personal liberty, the first and end of human laws (Blackstone)

the right to silence in both trial and pre-trial contexts

rights to security of the person and to privacy, from the most intimate invasion of personal autonomy to search of premises, and

fair trial rights and many of the vast array of judicial, prosecution and practitioner obligations, pre-trial and trial, including for example delay, disclosure, waiver of rights and witness questioning

As this book reveals, human rights jurisprudence is an agent for appreciating new perspectives that resonate with, but as yet have not been traversed in breadth and depth by Australian courts. Whilst human rights obligations may offer some transformative potential, in many respects its realisation rests with courts’ willingness to follow courageous paths.

This book provides a detailed coverage of key trends and developments. It collects together for legal practitioners, academics and law students the extensive international human rights jurisprudence of the UK, Europe, Canada, the USA, South Africa, New Zealand and Hong Kong. Key cases are highlighted throughout and all is placed into a highly readable and engaging format.

Jeremy Gans is an Associate Professor at Melbourne Law School. Since 2007, he has been the external consultant on human rights to the Victorian Parliament’s Scrutiny of Acts and Regulations Committee and is also a consultant to that Committee’s 2011 review of the Charter. Jeremy primarily teaches evidence and criminal law, while his research covers the field of criminal justice.

His publications include: A running commentary on Victoria’s rights Charter (2008): archived at Charterblog, Gans J; Uniform Evidence Gans J & Palmer A (2010), Australia, Oxford University Press; and, Modern Criminal Law of Australia Gans J (forthcoming), Australia, Cambridge University Press.

Terese Henning is a Senior Lecturer in Law at the University of Tamania. Her teaching responsibilities include Evidence Law, Criminal Procedure and Criminology. Her research focuses on Evidence and Criminal Procedure through the lens of law reform. She is a member of the Board of the Tasmanian Law Reform Institute. In 2006 she conducted the consultation for the Institute at the request of the Tasmanian Government on a Charter of Human Rights for Tasmania and wrote the Issues Paper for the consultation and the Final Report for the Government.

Her other publications include: Hunter JB, Cameron C & Henning T (2005) Litigation I: Civil Process, 7th edition, Australia, LexisNexis; Hunter JB, Cameron C & Henning T (2005) Litigation II: Evidence & Criminal Process, 7th edition, Australia, LexisNexis; Warnings in Sexual Offences Cases Relating to Delay in Complaint, (2006) Tasmanian Law Reform Institute, Final Report No 8, University of Tasmania Press; and, Consolidation of Arrest Laws in Tasmania (2011), Final Report No 15, Tasmanian Law Reform Institute, University of Tasmania Press.

Jill Hunter is a Professor of Law at the University of New South Wales. Her publications and teaching focus upon the law and practice relating to criminal justice processes and the law of evidence. Her publications examine the impact of black letter law through practice-based, sociological and historical perspectives, with a prominent concern for law reform. In addition Jill’s interests gravitate to understanding the increasing significance to Australian criminal justice processes of globalisation, particularly in terms of human rights jurisprudence and lessons from other jurisdictions.

Jill has published the following books: Evidence, Advocacy and Ethical Practice: A Criminal Trial Commentary, Australia, Hunter, JB & Cronin K (1995), Butterworths; The New Evidence Law, Australia, Anderson J, Williams SC, N & Hunter JB, (2002), LexisNexis; Litigation I: Civil Process, 7th edition, Australia, Hunter JB, Cameron C & Henning T (2005), LexisNexis; and Litigation II: Evidence & Criminal Process, 7th edition, Australia, Hunter JB, Cameron C & Henning T (2005), LexisNexis; and, 3 previous editions with Aronson MI (6th edition, 1998), (5th edition, 1994) ; Aronson MI, Hunter JB & Weinberg M (4th edition, 1988); Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions, Roberts, P & Hunter, J (Hart Publishing, UK, EPD November 2011)

Kate Warner is a Professor of Law at the University of Tasmania where she teaches Criminal Law, Sentencing and Evidence. Currently she is Director of the Tasmania Law Reform Institute and a member of the Sentencing Advisory Council. She is sentencing editor for the Criminal Law Journal.

Her research interests in sentencing, criminal procedure and sexual offences have a criminological and law reform focus and increasingly reflect a human rights perspective. She has published numerous journal articles, book chapters and law reform reports.

Other publications include: Warner K, Davis J, Walter M, Bradfield R and Vermey R (2010) Jury Sentencing Survey, Report to the Criminological Research Council, Grant: CRC 04/06-07.