Lucy Dudko v Australia

Right of equality before the courts – whether defendant has right to attend appellate hearing

The author of the communication was convicted of offences in connection with the hijacking of a helicopter on a tourist flight over Sydney in order to secure the escape of an inmate of Silverwater prison. In her appeal to the New South Wales Court of Criminal Appeal the author alleged that she was not the hijacker and that pre-trial publicity had created prejudice in the minds of some of the jurors and resulted in a miscarriage of justice. The Court of Criminal Appeal dismissed the appeal, finding that appropriate directions were given to the jury at the author’s trial to ensure that the jury could perform its duty in assessing the evidence before it.1 The author unsuccessfully applied for legal aid in support of her application to the High Court of Australia for leave to appeal from the decision of the Court of Criminal Appeal. The author did not pursue an appeal to the Legal Aid Review Committee in relation to the decision to deny legal aid, as was her right. The author prepared her own special leave application which was refused by the High Court, on the grounds that whatever may have been the extent of the adverse pre-trial publicity the evidence of identity was so overwhelming that there could not be shown to have been a miscarriage of justice. The author was not permitted to attend the hearing of her special leave application, in accordance with the practice in New South Wales in relation to appellants in custody (which differed from the practice in other states where personal appearance was permitted).

* Sydney Centre for International Law, Faculty of Law, University of Sydney.

Before the Committee the author alleged violations of Articles 7, 9, 10, 14 and 17 of the 1966 International Covenant on Civil and Political Rights .2 In relation to the denial of legal aid the Committee found that the alleged violation was inadmissible as the author had failed to exhaust domestic remedies by declining to pursue an appeal to the Legal Aid Review Committee. In relation to the claim that the author’s trial was unfair on account of pre-trial publicity the Committee considered that the impact of the publicity had been considered by the trial and appeals court, and the judgment of these courts on the matter was not arbitrary, nor a denial of justice. As a result the author’s claim on this point was found to be inadmissible.
In relation to the author’s inability to appear in person at the special leave application, the Committee found that the author’s claim was inadmissible, and was substantiated on the merits. The Committee noted its previous jurisprudence that the disposition of an appeal does not necessarily require an oral hearing. However the High Court in this case did conduct an oral hearing at which a solicitor representing the New South Wales Director of Public Prosecutions was present and who made arguments to the Court. The Committee observed that at the hearing of the special leave application Kirby J questioned the solicitor for the Director of Public Prosecutions, asking whether a telecommunications link could be established to the prison in which the author was detained so that she would have the same right as other citizens to appear. The Committee concluded that there was a violation by Australia of Article 14(1) of the Covenant:
[W]hen a defendant is not given an opportunity equal to that of the State party in the adjudication of a hearing bearing on the determination of a criminal charge, the principles of fairness and equality are engaged. It is for the State party to show that any procedural inequality was based on reasonable and objective grounds, not entailing actual disadvantage or other unfairness to the author. In the present case, the State party has offered no reason, nor does the file reveal any plausible reason, why it would be permissible to have counsel for the State take part in the hearing in the absence of the unrepresented defendant, or why an unrepresented defendant in detention should be treated more unfavourably that [an] unrepresented defendant not in detention who can participate in the proceedings.3

1 R v Dudko [2002] NSWCCA 336.

2 [1980] ATS 23.

3 UN Doc CCPR/C/90/D/1347/2005 (2007), [7.4].

4 [1980] ATS 23.

5 UN Doc CCPR/C/59/D/560/1993 (1997).

Author: international

Mentioned in these Entries

International Covenant on Civil and Political Rights.