History of the Section


Section 25(2) is modelled on article 14(3) of the ICCPR. The Charter modifies article 14(3) by ensuring, where necessary, that people will be entitled to specialised communication tools and technology in order to understand the nature and reason for the criminal charge and to participate in the judicial process. Article 14(3) is also modified as it relates to the provision of legal assistance by making reference to the Legal Aid Act to ensure consistency with Victorian law. Also, a qualification is made in relation to the examination of witnesses to accommodate Victorian laws regarding cross-examination of certain witnesses, such as children and victims of sexual assault.


The purpose of these modifications was identified by the Human Rights Consultation Committee in this way:


‘The Charter provision modifies ICCPR article 14(3) in a number of important respects. First, the Committee has modified the provision to reflect the fact that some people charged with a criminal offence will need, and are entitled to, specialised communication tools and technology to understand the nature of and reason for the criminal charge and to participate in the judicial process. Secondly, the Committee has adapted the sub-sections dealing with the provision of legal assistance to include references to the Victorian Legal Aid Act 1978 to ensure consistency with current Victorian law. In addition, the Charter provision qualifies the rights of a criminal accused in relation to the attendance and examination of witnesses by including the words ‘unless otherwise provided by law’. The Committee considers that this qualification is necessary to ensure that the special rules in relation to the cross-examination of children or of victims of sexual assault would continue to apply.’ 265


Similar rights exist in comparative law. Refer to table below for further information.

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265 Human Rights Consultation Committee (Victoria), Rights, Responsibilities and Respect (2005) 44.

Comparative rights table

Charter

25. Rights in criminal proceedings


Section 25(2): A person charged with a criminal offence is entitled without discrimination …

To be informed promptly of charge
(a) to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands.

To prepare defence
(b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her.

To a speedy trial
(c) to be tried without unreasonable delay.

To defend in person or through a lawyer
(d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal assistance provided by Victoria Legal Aid under the Legal Aid Act 1978.

To be informed about legal aid
(e) to be told, if he or she does not have legal assistance, about the right, if eligible, to legal assistance under the Legal Aid Act 1978.

To legal aid (if eligible)
(f) to have legal aid provided if the interests of justice require it, without any costs payable by the accused person if he or she meets the eligibility criteria set out in the Legal Aid Act 1978.

To examine witnesses
(g) to examine, or have examined, witnesses against him or her, unless otherwise provided for by law; and
(h) to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses for the prosecution.

To an interpreter
(i) to have the free assistance of an interpreter if he or she cannot understand or speak English.

To specialised communication tools
(j) to have the free assistance of assistants and specialised communication tools and technology if he or she has communication or speech difficulties which require such assistance.

Against self-incrimination
(k) not to be compelled to testify against himself or herself or to confess guilt.

ICCPR

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:


Article 14(3)(a)

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.

Article 14(3)(b)

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.

Article 14(3)(c)

(c) To be tried without undue delay.

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: …

(d) Article 14(3)(d):
To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.

(e) Article 14(3) (d).

(f) Article 14(3)(d)

To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.

(g)(h) Article (3)(e)

To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

(i) Article 14(3)(f)

To have the free assistance of an interpreter if he cannot understand or speak the language used in court.

(j) No equivalent provision

(k) Article 14(3)(g)

Not to be compelled to testify against himself or to confess guilt.

ACT: Human Rights Act 2004

Comparative sections in bold

(a) Section 22(2)(a)

(b) Section 22(2)(b)

(c) Section 22(2)(c)

(d) Section 22(2)(d)

(e) Section 22(2)(e)

(f) Section 22(2)(f)

(g)(h) Section 22(2)(g)

(i) Section 22(2)(h)

(j) No equivalent provision

(k) Section 22(2)(i)

S Africa: Constitution of the republic of South Africa 1996 Chapter 2

Comparative sections in bold

(a) Section 35(3)(a)

(b) Section 35(3)(b)

(c) Section 35(3)(d)

(d) Section 35(3)(e) and (f)

(e) Section 35(3)(g)

(f) Section 35(3)(g)

(g) and (h) Section 35(3)(i)

(i) Section 35(3)(k)

(j) No equivalent provision

(k) Section 35(3)(j)

UK: Human Rights Act 1998

(a) Schedule 1, art. 6(3)(a)

(b) Schedule 1, art. 6(3)(b)

(c) Schedule 1, art. 6(1)

(d) Schedule 1, art. 6(3)(c)

(e) No equivalent provision

(f) Schedule 1, art. 6(3)(c)

(g)(h) Schedule 1, art. 6(3)(d)

(i) Schedule 1, art. 6(3)(e)

(j) No equivalent provision

(k) No equivalent provision

Canada: Canadian Charter of Rights and freedoms

(a) Section 11 (a)

(b) No equivalent provision

(c) Section 11(b)

(d) (e) (f) (g) (h) No equivalent provision

(i) Section 14

(j) No equivalent provision

(k) Section 13

New Zealand: New Zealand Bill of Rights Act 1990

(a) Section 24(a)

(b) Section 24(c) and (d).

(c) Section 25(b)

(d) Section 25(e)

(e) No equivalent provision

(f) Section 24(f)

(g)(h) Section 25(f)

(i) Section 24(g)

(j) No equivalent provision

(k) Section 25(d)