What a "fair trial" means

Today, the High Court of Australia decided Nudd v R [2006] HCA 9 (9 March 2006), a case with helpful dicta on the meaning of "fair trial". I have recently noted cases concerning what is a substantial miscarriage of justice (see Index), and have described the two ways in which miscarriages of justice may be considered "substantial" for the purposes of the proviso: by depriving the accused of a real chance of an acquittal, or by causing the trial to be unfair.

Nudd recognises that, even though the evidence of guilt may be overwhelming, there may be rare cases where there has nevertheless been a miscarriage of justice because the trial was rendered unfair to the accused: see Gleeson CJ at para 6, Kirby J at 87 and 100, Callinan and Heydon JJ at 158. The other judges, Gummow and Hayne JJ jointly decided that no miscarriage of justice had been demonstrated to have occurred (para 25). Gleeson CJ agreed with that conclusion.

Kirby J treated the outcome aspect (the depriving of the accused of a real chance of acquittal) in the same way as the other judges, holding that on any approach, there was no prospect of acquittal as the prosecution case was overwhelming, but he also gave the most detailed consideration to the other aspect, that of the fairness of the trial. He found this the more difficult point to decide (para 106), because the defects at trial (counsel’s serious incompetence, especially in not knowing the law and in failing to take detailed instructions and consequently to advise the client) were so serious. He held that this case was "borderline" on the question of fairness (para 109), but that the decisive point was that the evidence against the accused was conclusive of guilt.

This might be thought to muddy the distinction between the outcome aspect and the fairness aspect of substantial miscarriage of justice. However, I suggest that Kirby J’s reasoning is essentially that, from the point of view of fairness, the errors were inconsequential, because the defence in the trial had (and could only have) been to put the prosecution to proof, and the judge in her summing up had properly directed the jury on the law.

I have previously suggested that a fair trial is one where the law is accurately applied to the facts determined without bias. Applying this to Nudd, we can say that the errors at trial (counsel’s incompetence) did not cause the law to be applied inaccurately, nor did it cause the jury to be biased against the accused.