Criminal Due Process: Understanding Case Law and Constitutional Interpretation

This essay from Desklib provides a comprehensive overview of criminal due process, case law, and constitutional interpretation. It covers legal issues, facts, and legal advice related to criminal justice, including the right to remain silent, contempt of court, and the role of the judiciary in interpreting the Constitution. The essay also discusses the limitations of the high court and the superiority of the Supreme Court in administering justice.

Law Essay
Criminal Due Process

Introduction
Case law is a section of the common law that involves higher courts designed for appeals against
the high court decisions. Clients seek the interpretation of constitutional provisions in these
courts. Based on statutes, the precedents provide binding decisions done within the legal
mandate. There are different types of case laws including business, criminal, civil and family law
segments. Each of these cases has specific steps or procedures undertaken before an appeal. For
example, a civil case involves pleadings, motions, trial, and appeal. This may be a case of
individuals or groups. Corporate disputes include violations by workers while in criminal cases
the accused person faces convictions for crime. The client needs advice on the updated case law,
which works on its own principles1. Unlike common law, which has its basis on customs and
unwritten law, case law is statutory. Important considerations in a case include guides on how to
handle the case, instructions, frequent questions, alternative information and advice. Possible
appeal against conviction occurs when an aggrieved party is dissatisfied. This takes place at a
higher court and should be within the stipulated timelines. The court hearing has different
outcomes and when the court of appeal affirms a decision, it means that it supports or is in
agreement with the courts decisions. The high court may also reverse or overrule a court
decision.2
List of Facts
The case example involves a client who is facing convictions of an offense but refuses to answer
questions because of incrimination. The 1977 Evidence Act defines the privilege of a witness in
1Law handbook, Case Law, Legal Services Commission of South Australia,
https://www.lawhandbook.sa.gov.au/ch27s02s01.php
2The Australian Constitution Act 1900, Chapter III. The Judicature, Appellate Jurisdiction of High court,
Federal Register of Legislation, https://www.legislation.gov.au/Details/C2004C00469

a court stating that the witness “shall not be compelled by virtue of an order under section 37 to
give any evidence which the person could not be compelled to give “3 n state proceedings or
other courts. However, there are exemptions in the case where a judge gives an order based on
s15 (1)4. The judge, in this case, might have had a supporting statement, which subjected the
accused to give the information. However, the court convicts the client as he declines to give the
court order. On the Appellate jurisdiction of High Court, the law allows the high court to listen to
appeals, orders, and sentences5. All judgments need a just hearing and the court exercises its
federal jurisdiction as the Supreme Court of the State to establish the law. It is also the
constitutional mandate of the court to observe the fundamental human rights as part of the rule of
law.6 A client has a right to remain silent in a court of law in except when there is no legal
representation. In this case, the client did not have a lawyer. The client may also remain silent
except in a criminal case, where there is a serious offense warranting for the release of
information.7This led to the contempt of court in which the accused was considered disobedient
to the court. This led to the contempt of court in which the accused was considered disobedient
to the court. This happens when investigations on the alleged crime are evident. If the
consequences are dire then the judge may deny the right of silence. Still, the need to respect the
dignity of the client and his privacy was necessary8.
3Evidence Act 1977 (Qld), Sect 38 (1) Privilege of witness.
http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/qld/consol_act/ea197780/
4Ibid, s15 (1)
5 Ibid, Appellate Jurisdiction of High Court
6 Gray, Anthony, Criminal Due Process and Chapter III of the Australian Constitution, Federation Press,
2016
7Evidence Amendment Act 2013 ( NSW ),
8 Simon Matters, “Anything You Don’t Say May Be Given in Evidence: Protecting the Interests of Justice
Simon or Emasculating a Fundamental Right?” 9 1997) 4 (1), Deakin Law Review 49

The concurrent sentence may have been any type of offense. It is possible the accused was in
court for a criminal offense. In this case, the Australian constitution has consideration for the
serious issue such as public law, rule of law, and constitutional implications. If the judge took an
interpretative approach then he would favor upholding the law and not fundamental human
rights. Chapter III jurisprudence works together with Chapter 5, which points out the
Presumption of Innocence as used in the reverse onus where the client needs to provide a burden
of proof9. The judge must have proven beyond reasonable doubt that the accused bore the guilt of
the offense. The 1995 Evidence Act supports international treaties such as the Human Rights
Committee10
Despite the client’s rights, the judges are under obligation to follow all interpretations of the
constitution under the doctrine of precedence. On the other hand, there is a possibility of a prima
facie, in which the judge may have had enough evidence in the implications for a conviction.
This is the case because the client had an opportunity to answer a few questions. Client’s
concerns about his answers working against him came true after the conviction. However, if the
judgment was wrong, then there was an abuse of process11. The s15 (1A) of the Evidence Act
1977 (Qld) says that failure to give answers during a trial is contempt of court and is punishable
and attracts a three moths jails term12. There are possible reasons why the judge took that twist.
The client who agreed to testify ends up in jail for a cumulative jail term. The court of appeal
expects that the high court judge acted out of professionalism because this was a trial and not a
pretrial. During the preliminary stages of the investigation process, there are gaps in information.
9Criminal Code Act 1995, Section 13.2
10 Evidence Act, Section 141
11Nedim, Ugur, The Right to Remain silent, April 2014, https://nswcourts.com.au/articles/the-right-to-
remain-silent/
12Evidence Act 1977 (Qld) s15 (1A)

A case law goes through different stages and Chapter III jurisprudence provides ideas for the
validating the s15 (1) and s15 (1A) clauses. This what the justice system would consider the
criminal due process when dealing with criminal justice.
Legal Issues
Having focused on Chapter 3 of the Australian Constitution 2016 and Evidence Act ( Qld) 1977,
s15(1) and s15(1A), it is important to consider whether the Constitution Act gives the judge the
power to ask the client of the client is a witness for information. Several cases like the case Petty
and The Queen bring out the strengths and weaknesses of the legal process and directions for
hearing13. In this case, the pretrial silence came into effect as the accused person opted to
withhold information through silence. This case brings out a constitutional ground under which
the justice system interacts with the human being. The client’s refusal to testify would have been
out of fears of contradicting himself. This is risky because a person could end up in jail out of
unclear circumstances. Judges and attorneys are aware of the risk of trying to impose guilt on a
client and the prosecution has to ascertain the relevant facts.14 When administering justice, legal
questions arise from the facts presented. In this case, there are questions about what type of
accusation the client faced. Judges use criteria for separating what is factual, and what is simply
hearsay. Since there is no substantial evidence in the underlying circumstance, the client places
himself in danger of prosecution because of the underlying consequences.
Making inferences from the facts helps the judge to perceive relevant information for a fair
judgment. If all information used was legal, factual and without contradiction then the evidence
is reliable. Every release of information calls for a rationalized thought to prove the innocence of
13Petty and Maiden v R-[1991] HCA 34
14 Brown, Ray, Fact and Law Judicial Review, Harvard Law Review, Vol 56 ( 6), pp 899-928

the accused. The appellant in the case needs to strengthen his reasons for demanding a fair trial.
This calls for inferences on the evidence and categories of explanations. Incremental
circumstances with different convictions as seen in the case reveal the limitations of a high court
and the superiority of the Supreme Court. Ruddock v Vadarlis, federal court case featured in
2001 an appeal came after initial proceedings and a trial leading to the issuance of an injunction.
15. In another case, the between the Commonwealth and Kreglinger, constitutional principles
define then limitations.16 Often the judgment placed during a trial reinforces legal arguments.
Ascertaining information in a case law protects the violation of human rights and it gives judges
an opportunity to deliver fair judgment. The trial stage of the case depends on concrete
information when passing judgment. The case may be ongoing while investigations continue in
order to raise arguments in support of the truth.17Australian statutes in chapter 3 support other
legislation such as the Australian Security Intelligence Organization Act, which gives direction
for self-incrimination in cases where there are security concerns.18 Some information is important
in legal practice and sharing responsibilities between the high court and court of appeal prevents
unlawful practices. This gives the legal system a human rights obligation and is critical in legal
practice and additional submission.
Whether the judge penalizes the client for initially refusing to respond to the court order or not
depends on the issues at hand. The client answers to the court order based on the Constitution
15 Ruddock v Vadarlis [2001] FCA 1329
16 Commonwealth v Kreglinger (1926) 37 CLR 413.
17Kiefel,B, J; Crennan, H; French, C, J, X7 v The Australian Crime Commission [2013] HCA 29
18 Australian Security Intelligence Organisation Act 1979-AustLII, Act No. 113
https://www.legislation.gov.au/Details/C2012C00260

and the Evidence Act serves as a reference point. However, the client may receive regrettable
results due misconceptions or misrepresentation of facts. Sometimes the legal system can go
wrong and this is the reason for constant amendments to statutes.19 Assessing the effectiveness of
the legal system is a concern that calls for harmonization in order to prevent unnecessary
controls that violate human rights laws. This is common in complex criminal cases and it
prevents the crisis in the application of the law. Constitutional arguments vary according to the
contexts. The judge may have made ruling in the first trial based on the textual argument. The
judge may be using the textual argument to apply the original meaning of a constitutional clause.
The stipulated constitutional needs. When it comes to precedents, amendments are more
effective and purpose driven. A good example is the recent developments on Alternative dispute
resolutions.20 This option considers the most practical and effective alternative to court disputes.
This may be a solution to civil cases but present a challenge for the criminal offenses. The
Supreme Court structure builds on the high court approach giving solutions on power limits.
Counter-arguments about the use of reasonable legislation depends on the court's definition of
what is reasonable or not.
Under the Constitution, the Judge has the power under the Constitution to offer protection and
ensure compliance. Therefore, a judge provides interpretation of the constitution as well as its
application. Concerned with the protection of rights, constitutionalism gives the judiciary
autonomy and protection of rights. Sometimes judgments do not turn out fairly but the client has
a right to appeal. The Federal Court has an opportunity to hear appeals from a single judge
19Lambert, A; Pantano, P, Law Council recommends reform to continuing detention order, control order
regimes, the Law council of Australia, https://www.lawcouncil.asn.au/media/media-releases/law-
council-recommends-reform-to-continuing-detention-order--control-order-regimes
20Martin, Wayne, Australian Dispute Centre, 6 March 2018

bench, a jury.21 Appeals may occur when the legal application is wrong and the fact-finding
approach lacks evidence. Adherence to the constitutional requirements separates improper codes
and encourages the court to the application of the constitution. Set up under Chapter 3 the
judiciary supports the Australian common law within the high court and Federal courts22.
Legal advice incorporates information useful in the interpretation of the constitution. The client
requires an accurate representation of the procedures, different rights and the evidence given.
Police questioning often serves as evidence and may serve as evidence against the client.
Questions arise on whether the Evidence Act works against itself because both the lower and
higher courts have rights under the Constitution. However, variations in the interpretations create
the big difference.23 Chapter III becomes an invalid act when there are frustrations within the
high court. Sometimes the court of appeal may dismiss an appeal based on lack of evidence or
hearsay. This has been the case with prominent cases like Baker v The Queen, in which Khalid
Baker is dismissed on grounds of insufficient evidence. Federal jurisdiction gives wisdom to the
high court and serves as a reference point for the higher courts. In chapter III judges have
limitations as the level in which they can exercise their powers. Both the state and
commonwealth legislation attest to this. Chapter III is a case law with a framework model that
interprets the constitution. The 2006 case between Forge v Australian Securities and investments
is a perfect example of challenges to the dues process and the trial by a jury.24 Fundamental
21Federal Court of Australia Act 1976, Appeals from courts
22 Evidence Act 1977 (Qld), Sect 38 (1)
23 Kommers, Donald and Russel Miller, The Constitutional Jurisprudence of the Federal republic of
Germany, 2012, Duke University Press
24Forge v Australian Securities and investments Commission, [2006] HCA 44

functions and powers of court systems at the appeal level shows restrictions on how to handle
different types of disputes through standard procedure and supporting legislation.
*Application of the Law
The application of constitutional law whose foundation is constitutional theory is dependent on
the legal principles25 Appellate Jurisdiction of the High Court gives power to the court for the
determination of judgments, orders, and sentences. This gives the client hope for an appeal. In
this quest for justice, the decision is final and a positive conclusion is ideal. However, the appeal
process has a limitation in that it works within the limits of the constitution. The due process of
jurisdiction separates the judicial power and the doctrines. The court of appeal has roots in the
Commonwealth judicial system, which provides guidelines for criminal and civil cases. Useful in
multidisciplinary levels, case laws continue to exist as sources of fair trials in civil and criminal
cases. The court has jurisdiction to exercise powers within the constitutional principles. An
efficient due process is relevant and purpose driven. Integrity and professionalism highlight the
constitutional mandate of the due process and the process of enforcing decisions in the legal
system. The constitutional principles such as separation of powers allow the high court to
function freely without interference from the federal court. However, there is a need for the
separation of legal doctrines.
The application of legal standards within the Australian standards dictates legal proceedings in
the judiciary. These determine who handles what and when. The principles give a due process in
which the client can address the legal issue differently. At the appeals level, the client deserves a
25Anthony Blackshield, Blaskshield and Williams Australian Constitutional Law Theory: Commentary and
Materials & Materials, Annandale, NSW: The Federation Press, 2014

fair trial during court proceedings including cross-examination. This is the high law of the land
and justice is mandatory. As courts designed for justice, these face contemporary challenges such
as the provision of competent jurisdiction. Essence the federal court holds the respect and
powers. When a judge upholds the ruling of a high court, they are at the same level. However,
sometimes a supreme court demonstrates its independent rules such as the definition of terms. 26.
This independence supports basic human rights as stipulated under the procedural and criminal
case law proceedings.
The application of due process in case law covers an array of practices. Besides the criminal and
civil laws, legal proceedings define terms of judgment redefining the justice system. Although
engraved in procedural justice, it is substantive in legislation. This means that judges have their
own interpretation of legal concepts such as human rights. Coined after the UK system the court
of Appeal reflects a merger between the Australian common law, international human rights
convention and the high court or constitutional law. Spheres of influence for the due process
include the public hearing where the client presents a case before a group of jurists who listen
and give a verdict. Fairness in legal procedures operates under the principle of legality and a bill
of rights. In a constitutional case, separation of powers is important for controlled delivery of the
law enforcement process.27 Covered under the Crimes Act of the juridical system, this rationale
facilitates for the application of the common law. Law informant officers, in this case, operate
within the stated principles for the common good. In this case, unlawful conduct is punishable by
law. The court upholds the constitution and supports future amendments. Changes in the legal
system start by identifying gaps in the constitution. Federal legislation works closely with the
26 McGuirk, Rod, Australia’s high court begins hearing citizenship cases that could collapse the county’s
government, The independent, https://www.independent.co.uk/news/world/australasia/australia-dual-
citizenship-case-high-court-constitutional-ban-parliament-barnaby-joyce-scott-lundlum-a7992631.html
27Nicholas v the Queen [1998] 193 CLR 173 ( ‘Nicholas)

courts for necessary changes as seen in different cases. Procedural laws such as environmental
and industry-specific laws use duty-based approaches to decision making. Violation leads to
negligence and its use of common law and natural justice enhance statutory principles in the
corporate world. Justice, in this case, refers to procedural fairness. Government agencies have
specific roles that support the common law for the individual rights. Procedural fairness includes
giving convicted persons a fair judgment through a proper hearing, trial and appeal process.
Selective justice is unfair and it corrupts the legal system.
The Australian constitution pays attention to the right to be heard, procedural fairness, and the
bill of rights. Its principals of legality support the use of power under certain rights that people
need and their freedoms. Based on legal arguments, drawings and precedents, the Australian
legal system combines traditional and modern applications. Therefore, the laws are what people
easily recognize. Legal arguments at the high court will revolve around these ideas, different
sources and legal systems28. From the case analysis, the Supreme Court has strengths and
weaknesses. When judges make decisions on a case, they focus on the most persuasive evidence
tabled for them. The legal fraternity capitalizes on all kinds of sources in order to build a strong
case. There are historical arguments with examples for modern day to shape legal and policy
arguments. The development of a reasoning system presents logical arguments to enable a client
to win a case. Therefore, the law carries statutes, regulations, and ordinances that citizens adhere
to for peace and order. Although there are criminals who are keen on disobedience, some good
people end up in the wrong place despite good intentions. Unfairness through corruption is also
widespread in the legal system. Inconsistency in the judicial power raises questions about the
effectiveness of a due process. Justice administration challenges need effective solutions to boost
28Williams v commonwealth of Australia [2014] HCA 23
http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2014/23.html

the public confidence. Criminal proceedings involve procedural justice and administrative
fairness. This calls for institutional integrity across the lower and higher levels of justice.
Conclusion
Obstruction of justice occurs across different levels of the Australian judicial system. Among this
is the procedural, administrative, and legal systems. In order to understand the conceptualization
of justice in any legal system, it is important to have insight into its structure, history, due
processes, and constitutional framework. The Australian legal system prides itself on a federal
court that supports appeals in case of dissatisfied judgments at a high court level. However,
challenges such as lack of integrity and misinterpretation of the law and mistakes arise because
of institutional and individual characteristics. As a result, many people languish in prisons
waiting for justice with accusations and convictions they know nothing about.

Bibliographies
Legislation
Federal Court of Australia Act 1976, Appeals from courts
Evidence Act 1977 (Qld), Sect 38 (1)
Criminal Code Act 1995, Section 13.2
Evidence Act, Section 141
Evidence Act 1977 (Qld) s15 (1A)
Gray, Anthony, Criminal Due Process and Chapter III of the Australian Constitution, Federation
Press, 2016
Evidence Amendment Act 2013 (NSW)
Petty and Maiden v R-[1991] HCA 34
Cases
Nicholas v the Queen [1998] 193 CLR 173 (‘Nicholas)
Williams v commonwealth of Australia [2014] HCA 23
http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2014/23.html

Forge v Australian Securities and investments Commission, [2006] HCA 44
Ruddock v Vadarlis [2001] FCA 1329
Commonwealth v Kreglinger (1926) 37 CLR 413
Kiefel, B, J; Crennan, H; French, C, J, X7 v The Australian Crime Commission [2013] HCA 29
Law handbook, Case Law, Legal Services Commission of South Australia,
https://www.lawhandbook.sa.gov.au/ch27s02s01.php
The Australian Constitution Act 1900, Chapter III. The Judicature, Appellate Jurisdiction of
High court, Federal Register of Legislation,
https://www.legislation.gov.au/Details/C2004C00469
Evidence Act 1977 (Qld), Sect 38 (1) Privilege of witness. http://www8.austlii.edu.au/cgi-
bin/viewdb/au/legis/qld/consol_act/ea197780/
Other sources
Blackshie Anthony, Blaskshield and Williams Australian Constitutional Law Theory:
Commentary and Materials & Materials, Annandale, NSW: The Federation Press, 2014
Rod, McGuirk, Australia’s high court begins hearing citizenship cases that could collapse the
county’s government, The independent,
https://www.independent.co.uk/news/world/australasia/australia-dual-citizenship-case-high-
court-constitutional-ban-parliament-barnaby-joyce-scott-lundlum-a7992631.html

Anthony Blackshield, Blaskshield and Williams, Australian Constitutional Law Theory:
Commentary and Materials & Materials, Annandale, NSW: The Federation Press, 2014
McGuirk, Rod, Australia’s high court begins hearing citizenship cases that could collapse the
county’s government, The independent,
https://www.independent.co.uk/news/world/australasia/australia-dual-citizenship-case-high-
court-constitutional-ban-parliament-barnaby-joyce-scott-lundlum-a7992631.html
Martin, Wayne, Australian Dispute Centre, 6 March 2018
Kommers, Donald and Russel Miller, The Constitutional Jurisprudence of the Federal republic of
Germany, 2012, Duke University Press
Brown, Ray, Fact and Law Judicial Review, Harvard Law Review, Vol 56 (6), pp 899-928
Australian Security Intelligence Organisation Act 1979-AustLII, Act No. 113
https://www.legislation.gov.au/Details/C2012C00260
Lambert, A; Pentane, P, Law Council recommends reform to continuing detention order, control
order regimes, the Law council of Australia, https://www.lawcouncil.asn.au/media/media-
releases/law-council-recommends-reform-to-continuing-detention-order--control-order-regimes
Simon Matters, “Anything You Don’t Say May Be Given in Evidence: Protecting the Interests
of Justice Simon or Emasculating a Fundamental Right?” 9 1997) 4 (1), Deakin Law Review 49
Nedim, Ugur, The Right to Remain silent, NSW, April 2014,
https://nswcourts.com.au/articles/the-right-to-remain-silent/