common law

Obiter: The Accused, The Rule of Law and Justice Lionel Murphy in Dissent


It was the 1970s. I was a law student at Adelaide University Law School and High Court Justice Lionel Murphy was ahead of his time.

His passionate dissent in McInnis v R (1979), a High Court case about the right to a fair trial in Australia, remains imprinted in my mind.  Justice Murphy upheld Mr. McInnis’ right to be represented by legal counsel. Without it, his trial would not be fair.

MURPHY J. Every accused person has the right to a fair trial, a right which is not in the slightest diminished by the strength of the prosecution’s evidence and includes the right to counsel in all serious cases. This right should not depend on whether an accused can afford counsel. Where the kind of trial a person receives depends on the amount of money he or she has, there is no equal justice. (at p583)

McInnis v The Queen (1979) 27 ALR 449 and 143 CLR 575



The case also showed that this was not an isolated instance. The Crown Prosecutors told the Court that refusal of legal aid in serious cases like murder was “not exceptional“. To that Justice Murphy responded, “the State systematically denies a basic human right“.


12549117_10154403673570400_3944499977200466411_n[1]Being a student of law when this decision came down, I knew Justice Murphy’s dissent was important, even though I hadn’t set foot in a courtroom. Back then, the practical in law schools was basically non-existent. Everything came through books and case law and lectures and tutorials and assignments and exams and all that paper! No computers. No internet. Just words and concepts, the dull strictness of case law, fact patterns, precedents, judgments and all that pedestrian stuff and of course the Latin and French of things like ratio dicidendi, obiter dicta, mens rea, actus reus, res judicata, voir dire, demurrer, attainder, autrefois acquit and so on and so forth. Exams, examinations, examine, write, writ, writing and all of it. Hmph!

Oh so many cases, decisions and judgments as is the way of the common law, a stare decisis patchwork of judge-madeab3819c6e029baa366a2475a1aab3a36[1] law, of gathering past and previous decisions, the precedents, to try to make sense of the present facts. A system guided by the Latin phrase “stare decisis” (stare decisis et non quieta movere) which translates as to stand by decisions and not to disturb settled matters.

As law students we read, read and read with never an end in sight! I swear I sometimes felt like I was drowning in the stuff or morphing into a skeleton glued to the chair in the law library.





Back in 1979 there was no right to a fair trial in Australia.

There is no legal right now. You got it. Nothing has changed.

Australia lacked a rights jurisprudence then just as it does now.

There is no Bill of Rights in Australia.

And when there is intermittent talk, chatter and more talk about a Bill of Rights it basically omits consideration of fair trial rights.

And when there is periodic angst, argument, shouting and fear mongering about a Bill of Rights it basically omits consideration of fair trial rights.

In the end the talk fests and shouting matches all ring hollow and nothing happens. Repeat performances. What do we get?

No Bill of Rights.k29227556[1]

I left Australia in the early 1980s for the USA where I spent years in the criminal defence arena working with that brilliant 200-plus year experiment with due process called the Bill of Rights, especially the 4th, 5th, 6th and 8th Amendments. An intimate understanding of these four Amendments is critical in criminal defence work in the USA.

I find it endlessly frustrating working in a jurisdiction where such protections are absent.



The issue in McInnis was the right to counsel, to a lawyer, to due process and to a fair trial. No right was found other than by Justice Murphy dissenting. Since then, what the High Court has said is that while there is no right to a fair trial in Australia, there is a right not to be tried unfairly. Got it? Crystal clear isn’t it.

No right to a fair trial, just a right not to be tried unfairly.


Justice Deane explained:

The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law. As a matter of ordinary language, it is customary to refer to compendious terms to an accused’s “right to fair trial”… Strictly speaking, however, there is no such directly enforceable “right” since no person has the right to insist upon being prosecuted or tried by the State. What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial. Deane J said in Jago v District Court (NSW) (1989) 168 CLR 23 at 56 – 57


What this means is that while in Australia we say we have a right to a fair trial we in fact don’t.

There is not a constitutionally entrenched right to counsel in Australia which means there is no right at all.

How can you have a fair trial without a lawyer?

There is no legally enforceable right to a fair trial, to due process in Australia, which means there is no right at all.




Our system of justice here remains flawed while there is no right to counsel enshrined in any Bill or Charter or Covenant or Declaration or Statement of Rights.

The flaw means we have no right to a fair trial in Australia.

We are not protected from those in power.


Every person accused of a crime should have their guilt or innocence determined by a fair and effective legal process. But the right to a fair trial is not just about protecting suspects and defendants. It also makes societies safer and stronger. Without fair trials, trust in justice and in government collapses.  Jago Russell


Defending The Human Right to a Fair trial