R v DA  ACTSC 26 (31 Mar 2008) In an ex tempore judgment delivered by Higgins CJ, the ACT Supreme Court has stated that s 21 of the Human Rights Act 2004 (ACT) confers a positive right to a fair trial and thereby modifies the common law which merely provides for the right to be free from an unfair trial.
The decision arose from an application by an accused to vacate a trial date. In the context of this application, Higgins CJ drew a distinction between the common law right to not have an unfair trial (see, eg, Dietrich v The Queen (1992) 177 CLR 292) and the positive right under s 21 of the Human Rights Act 2004 (ACT) to a fair trial. In Higgins CJ’s view, this is ‘a very different emphasis’. His Honour compared the ACT position with Kirby J’s minority decision in Nudd v The Queen  HCA 9, where, drawing on human rights conventions such as the ICCPR, Kirby J had argued the common law should confer a positive right to a fair trial. The majority considered that the common law merely conferred a right to be free from unfairness. Higgins CJ noted that, ‘We do not have to have that debate in this Territory because that right is conferred by the HRA 2004, thereby modifying the common law accordingly.’ (at ).
Having regard to this positive right, to which his Honour gave ‘decisive weight’, together with factors such as there being ‘no prejudice to the Crown or to any Crown witness, or to the trial, the efficiency or otherwise of the trial’, Higgins CJ granted the application to vacate the trial date.
The decision is available at http://www.courts.act.gov.au/supreme/judgments/da.htm.
This case note was provided by the ACT Human Rights Act Project at ANU (http://acthra.anu.edu.au/)