Ensuring the Right to a Fair Criminal Trial Using Communication Assistance

Abstract

Given the emphasis on verbal testimony in Australian criminal trials, witnesses and accused experiencing communication barriers due to vulnerabilities such as age (i.e., child witnesses), cultural or language background (in particular, Indigenous Australians), physical disabilities, and mental impairment or cognitive disabilities may require support to provide evidence. Around Australia, such support is increasingly being provided by communication assistants or intermediaries. This paper argues that such assistance is a precursor to a fair trial, which is an international human rights law obligation stemming from Article 14 of the International Covenant on Civil and Political Rights (‘ICCPR’), as well as a common law right. There are gaps in coverage of communication assistance/intermediary schemes, including the complete absence of specific legislation and assistance in the Northern Territory, the limited eligibility criteria in jurisdictions that have introduced schemes, the lack of provision for Indigenous Australian people and people from Culturally and Linguistically Diverse (‘CALD’) backgrounds, and lack of provision for vulnerable accused (only two jurisdictions provide assistance to accused). These gaps should be addressed to ensure the right to a fair trial.