Chapter 8—Offences against humanity and related offences
Division 268—Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court
Subdivision K—Miscellaneous
268.123 Legal representation
The provisions of section 12 (other than subsection 12(2)) of the Geneva Conventions Act 1957 apply in relation to the trial of a person for an offence against this Division in the same way as they apply in relation to the trial of a protected prisoner of war.
Chapter 2—General principles of criminal responsibility
Part 2.6—Proof of criminal responsibility
Division 13
13.1 Legal burden of proof—prosecution
(1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.
Note: See section 3.2 on what elements are relevant to a person's guilt.
(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.
(3) In this Code:
legal burden, in relation to a matter, means the burden of proving the existence of the matter.
Chapter 2—General principles of criminal responsibility
Part 2.6—Proof of criminal responsibility
Division 13
13.3 Evidential burden of proof—defence
(1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.
(2) A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter.
(3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.
(4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.
(5) The question whether an evidential burden has been discharged is one of law.
(6) In this Code:
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
12 Legal representation of prisoners of war
(1) The court before which a protected prisoner of war is brought up
for trial for an offence shall not proceed with the trial unless:
(a) the accused is represented by counsel; and
(b) it is proved to the satisfaction of the court that a period of not
less than 14 days has elapsed since instructions for the representation of the accused at the trial were first given to
the solicitor by whom that counsel was instructed;
and if the court adjourns the trial for the purpose of enabling the
requirements of this subsection to be complied with, then,
notwithstanding anything in any other law, the court may remand
the accused for the period of the adjournment.
(2) In the absence of counsel accepted by the accused as representing
him or her, counsel instructed for the purpose on behalf of the
protecting power shall, without prejudice to the requirements of
paragraph (1)(b), be regarded for the purposes of that subsection as
representing the accused.
(3) If the court adjourns the trial in pursuance of subsection (1) by
reason that the accused is not represented by counsel, the court
shall direct that a solicitor and counsel be assigned to watch over
the interests of the accused at any further proceedings in
connection with the offence, and at any such further proceedings,
in the absence of counsel either accepted by the accused as
representing him or her or instructed as mentioned in
subsection (2), counsel assigned in pursuance of this subsection
shall, without prejudice to the requirements of paragraph (1)(b), be
regarded for the purposes of subsection (1) as representing the
accused.
(4) In relation to any proceedings before a court before which the
accused may be represented by a solicitor, subsections (1), (2) and
(3) shall be construed, with any necessary modifications, as if
references in those provisions to counsel were references to
counsel or a solicitor; and for the purposes of any such proceedings
the court, in giving a direction under subsection (3), may, if the
court is satisfied that the nature of the charge and the interests of
justice do not require that the interests of the accused should be
watched over by counsel, direct that a solicitor only shall be
assigned as mentioned in that subsection.
(5) A solicitor or counsel shall be assigned in pursuance of
subsection (3) in such manner as is provided by the regulations or,
in the absence of provision in the regulations, as the court directs,
and the fees and costs of any solicitor or counsel so assigned shall
be paid by the Commonwealth.
''Schedule 4—Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 PART I.—GENERAL PROVISIONS, ARTICLE 5''
In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
''Schedule 4—Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, SECTION III.—OCCUPIED TERRITORIES, ARTICLE 71''
No sentence shall be pronounced by the competent courts of the Occupying Power except after a regular trial.
Schedule 1—Amendment of the Criminal Code Act 1995
Chapter 8—Offences against humanity and related offences
Division 268—Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court
Subdivision K—Miscellaneous
268.123 Legal representation
The provisions of section 12 (other than subsection 12(2)) of the Geneva Conventions Act 1957 apply in relation to the trial of a person for an offence against this Division in the same way as they apply in relation to the trial of a protected prisoner of war.
Part 4—Other requests by ICC
Division 6—Questioning of person being investigated or prosecuted
71 Procedure where person questioned
(1) Before a person is questioned under section 70, the person must be informed that there are grounds to believe that he or she has committed a crime within the jurisdiction of the ICC and that he or she has the following rights:
(a) the right to remain silent without such silence being a consideration in the determination of guilt or innocence;
(b) the right to have legal assistance of his or her choosing or, if he or she does not have legal assistance, to have legal assistance assigned to him or her in any case where the interests of justice so require and without payment by him or her in such a case if he or she does not have sufficient means to pay for the assistance;
(c) the right to have his or her legal representative present when he or she is questioned unless he or she has voluntarily waived that right.
(2) If there is any inconsistency between subsection (1) and any other Australian law, subsection (1) prevails.
(3) This section does not give to any person a power to require anotherperson to answer questions.
Part 6—Search, seizure and powers of arrest
Division 4—Arrest and related matters
131 Persons to be informed of grounds of arrest
(1) A person who arrests another person under this Act or pursuant to a warrant issued under this Act must inform the other person, at the time of the arrest, of the crime in respect of which, or, if the other person is arrested under section 182, the reason for which, the other person is being arrested.
(2) It is sufficient if the other person is informed of the substance of the crime or reason, and it is not necessary that this be done in language of a precise or technical nature.
An Act to provide for the Trial and Punishment of War Criminals
Preamble
WHEREAS:
(c) it is also essential in the interests of justice that persons so accused be given a fair trial with all the safeguards for accused persons in trials in those courts, having particular regard to matters such as the gravity of the allegations and the lapse of time since the alleged crimes:
An Act to provide for the Trial and Punishment of War Criminals#
Part III—War crimes
19 Legal assistance
(1) A person who has been, or is about to be, charged with an offence against this Act may apply to the Attorney-General for assistance under this section.
(2) If the Attorney-General is satisfied that in all the circumstances it is appropriate and reasonable to grant an application made under this section, he or she may authorise the provision by the Commonwealth to the applicant of such legal or financial assistance in connection with a proceeding for the offence as the Attorney-General determines.
(3) An authorisation under subsection (2) may be made subject to such
conditions (if any) as the Attorney-General determines.
(4) In considering an application made under this section, the Attorney-General shall have regard to any hardship to the applicant that refusal of the application would involve.
(5) As soon as practicable after deciding to refuse an application made under this section, the Attorney-General shall give the applicant a written notice that:
(a) sets out the decision and the reasons for it; and
(b) requests the applicant to consent in writing to a copy of the notice being laid before each House of the Parliament in accordance with subsection (6).
(6) Where an applicant gives a consent in writing pursuant to a request under subsection (5), the Attorney-General shall cause a copy of the notice to which the consent relates to be laid before each House of the Parliament within 15 sitting days of that House after the Attorney-General receives the consent.
An Act to provide for the Trial and Punishment of War Criminals#
Part III—War crimes
19 Legal assistance
(1) A person who has been, or is about to be, charged with an offence against this Act may apply to the Attorney-General for assistance under this section.
(2) If the Attorney-General is satisfied that in all the circumstances it is appropriate and reasonable to grant an application made under this section, he or she may authorise the provision by the Commonwealth to the applicant of such legal or financial assistance in connection with a proceeding for the offence as the Attorney-General determines.
(3) An authorisation under subsection (2) may be made subject to such
conditions (if any) as the Attorney-General determines.
(4) In considering an application made under this section, the Attorney-General shall have regard to any hardship to the applicant that refusal of the application would involve.
(5) As soon as practicable after deciding to refuse an application made under this section, the Attorney-General shall give the applicant a written notice that:
(a) sets out the decision and the reasons for it; and
(b) requests the applicant to consent in writing to a copy of the notice being laid before each House of the Parliament in accordance with subsection (6).
(6) Where an applicant gives a consent in writing pursuant to a request under subsection (5), the Attorney-General shall cause a copy of the notice to which the consent relates to be laid before each House of the Parliament within 15 sitting days of that House after the Attorney-General receives the consent.
An Act to amend the War Crimes Act 1945
3. The Preamble to the Principal Act is repealed and the following Preamble
is substituted:
(c) it is also essential in the interests of justice that persons so accused be given a fair trial with all the safeguards for accused persons in trials in those courts, having particular regard to matters such as the
gravity of the allegations and the lapse of time since the alleged crimes:".
An Act to amend the War Crimes Act 1945
5. Sections 3 to 14, inclusive, of the Principal Act are repealed and the following section and Parts are substituted:
Legal assistance
"19. (1) A person who has been, or is about to be, charged with an offence
against this Act may apply to the Attorney-General for assistance under this
section.
"(2) If the Attorney-General is satisfied that in all the circumstances it
is appropriate and reasonable to grant an application made under this section,
he or she may authorise the provision by the Commonwealth to the applicant of
such legal or financial assistance in connection with a proceeding for the
offence as the Attorney-General determines.
"(3) An authorisation under subsection (2) may be made subject to such conditions (if any) as the Attorney-General determines.
"(4) In considering an application made under this section, the Attorney-General shall have regard to any hardship to the applicant that refusal of the application would involve.
"(5) As soon as practicable after deciding to refuse an application made under this section, the Attorney-General shall give the applicant a written notice that:
(a) sets out the decision and the reasons for it; and
(b) requests the applicant to consent in writing to a copy of the notice being laid before each House of the Parliament in accordance with subsection (6).
"(6) Where an applicant gives a consent in writing pursuant to a request under subsection (5), the Attorney-General shall cause a copy of the notice to which the consent relates to be laid before each House of the Parliament within 15 sitting days of that House after the Attorney-General receives the
consent.
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.