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Criminal Process and Human Rights


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Table of Contents

Introduction The Human Rights landscape Australian Human Rights Statutes The Right to Liberty: Arrest and Detention in Police Custody The Right to Liberty: The Ancillary Rights of those Deprived of their Liberty The Right to Silence The Right to Security of the Person The Right to Privacy Fair Trial: The Right Fair Trial: The Court Fair Trial: The Parties Index

About the Author

Jeremy Gans is an Associate Professor at Melbourne Law School. Since 2007, he has been the external consultant on human rights to the Victorian ParliamentaaC--(t)s Scrutiny of Acts and Regulations Committee and is also a consultant to that CommitteeaaC--(t)s 2011 review of the Charter. Jeremy primarily teaches evidence and criminal law, while his research covers the field of criminal justice. His publications include: A running commentary on VictoriaaaC--(t)s rights Charter (2008): archived at Charterblog, Gans J; Uniform Evidence Gans J & Palmer A (2010), Australia, Oxford University Press; and, Modern Criminal Law of Australia Gans J (forthcoming), Australia, Cambridge University Press. Terese Henning is a Senior Lecturer in Law at the University of Tamania. Her teaching responsibilities include Evidence Law, Criminal Procedure and Criminology. Her research focuses on Evidence and Criminal Procedure through the lens of law reform. She is a member of the Board of the Tasmanian Law Reform Institute. In 2006 she conducted the consultation for the Institute at the request of the Tasmanian Government on a Charter of Human Rights for Tasmania and wrote the Issues Paper for the consultation and the Final Report for the Government. Her other publications include: Hunter JB, Cameron C & Henning T (2005) Litigation I: Civil Process, 7th edition, Australia, LexisNexis; Hunter JB, Cameron C & Henning T (2005) Litigation II: Evidence & Criminal Process, 7th edition, Australia, LexisNexis; Warnings in Sexual Offences Cases Relating to Delay in Complaint, (2006) Tasmanian Law Reform Institute, Final Report No 8, University of Tasmania Press; and, Consolidation of Arrest Laws in Tasmania (2011), Final Report No 15, Tasmanian Law Reform Institute, University of Tasmania Press. Jill Hunter is a Professor of Law at the University of New South Wales. Her publications and teaching focus upon the law and practice relating to criminal justice processes and the law of evidence. Her publications examine the impact of black letter law through practice-based, sociological and historical perspectives, with a prominent concern for law reform. In addition JillaaC--(t)s interests gravitate to understanding the increasing significance to Australian criminal justice processes of globalisation, particularly in terms of human rights jurisprudence and lessons from other jurisdictions. Jill has published the following books: Evidence, Advocacy and Ethical Practice: A Criminal Trial Commentary, Australia, Hunter, JB & Cronin K (1995), Butterworths; The New Evidence Law, Australia, Anderson J, Williams SC, N & Hunter JB, (2002), LexisNexis; Litigation I: Civil Process, 7th edition, Australia, Hunter JB, Cameron C & Henning T (2005), LexisNexis; and Litigation II: Evidence & Criminal Process, 7th edition, Australia, Hunter JB, Cameron C & Henning T (2005), LexisNexis; and, 3 previous editions with Aronson MI (6th edition, 1998), (5th edition, 1994); Aronson MI, Hunter JB & Weinberg M (4th edition, 1988); Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions, Roberts, P & Hunter, J (Hart Publishing, UK, EPD November 2011) Kate Warner is a Professor of Law at the University of Tasmania where she teaches Criminal Law, Sentencing and Evidence. Currently she is Director of the Tasmania Law Reform Institute and a member of the Sentencing Advisory Council. She is sentencing editor for the Criminal Law Journal. Her research interests in sentencing, criminal procedure and sexual offences have a criminological and law reform focus and increasingly reflect a human rights perspective. She has published numerous journal articles, book chapters and law reform reports. Other publications include: Warner K, Davis J, Walter M, Bradfield R and Vermey R (2010) Jury Sentencing Survey, Report to the Criminological Research Council, Grant: CRC 04/06-07.


The publication of this impressive work is a really exciting event.This volume describes in helpful detail each stage of the criminal justice system as regulated by the common law and in the human rights jurisprudence and then compares the two. This is important for ... such human rights jurisprudence has a real capacity to influence and develop the common law even in jurisdictions which do not have the advantage of a human rights instrument.It breaks new ground in Australian legal writing on the criminal law. [The book] will be very useful to judges and magistrates, but especially practitioners, both prosecutors and defence counsel, who have to fashion the arguments to be submitted to the court. - Justice Richard Refshauge ...incredibly useful - I wish a book like this was available years ago - Emeritus Professor David Brown, University of New South Wales, August 2011 A compelling read ... It confronts the reader by incisively showing how Australian criminal law lives up to or falls short of human rights principles such as those in the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights. In world terms, can it be said that Australia is a legal backwater when it comes to enshrining or incorporating human rights? Impressively, CPHR [Criminal Process and Human Rights] is also very much a source of inspiration for argument and perhaps change whether it be by way of Court advocates or those who petition politicians. Read full review... - Julian Wagner, Hearsay, December 2011, 53

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