Area of Law – Practice and Procedure

An Article about Procedural fairness in criminal matters

PROCEDURAL FAIRNESS – referring to matter not accessible to counsel
A fundamental proposition of the criminal trial is that you should have a fair trial. There are many examples of this and this is just one of them. You should know what is being used as evidence against you in your trial. A Judge should not be given documents that you are not given (there are exceptions to this such as National Security issues).

Your lawyer should be able to tell you what is being relied on and what they are going to say in response.

Trial Judge referring to material not accessible to counsel
Sentence quashed for a fundamental failure of procedural fairness where Judge referred to sentencing remarks from previous County Court appearances without defence being privy to them.

R v Ulla [2004] VSCA 130

[A] sentence should not be imposed if it is founded wholly or partly on material which has not come before the sentencing judge in open court… If any relevant material is gathered or obtained by the judge from private sources or sources not available to to the parties, which is capable of being used adversely to the offender, then, unless that course is specifically agreed to by counsel for the offender, the sentence will ordinarily be set aside;

R v Wise [2000] 2 VR 287 per Ormistion J at 294

Can refer to facts not addressed where facts are a matter of notoriety
It is inappropriate for a sentencing judge to aggravate a sentence by reference to facts of which he or she has knowledge without giving counsel the opportunity to address and answer those facts, but that is not so when the facts are a matter of notoriety: see R v Li.

In such a case counsel should know, without being told, that such an adverse factor is likely to be taken into account: see R v Downie & Dandy.


Date: 01/09/2009